Information & advice

Irene is aged 64.  She works in the accounts department of a retail company. There is a normal retirement age of 65 for her position.  Irene does not want to retire at 65 and intends to make a request to continue working when she is given notice of her retirement. 

The employer has arranged training for Irene’s department on a new software package they will be using.  The training will be a three day course.  The employer has told Irene that she will not be trained because she will be retiring soon‚ and it’s not worth spending the money on training her. 

Irene wants to have the training as she would like to continue working for the same employer past the normal retirement age‚ but if this is not possible‚ would look for employment in same field elsewhere.  This is not the first time that Irene has been denied computer training available to other colleagues‚ and she believes that this is on the grounds of her age.  The training would greatly improve her prospects of getting work in the future.

1. Is there a potential age discrimination case?

This would amount to direct discrimination.  Irene is being treated less favourably than comparable colleagues on the grounds of her age.  Irene could compare herself to an actual colleague‚ who is younger than herself‚ who is being trained.

Irene believes that previous denials of computer training were also because of her age.  As the time limit for bringing an age discrimination claim is three months from the date of discrimination‚ she can only bring a claim relating to incidents that have occurred within the last three months‚ unless she can show that the denial is part of a series which amounts to a continuing act.  She may be able to argue that there is a continuing policy in place not to provide such training to anyone over a certain age (for example‚ age 63) and that this policy amounts to a continuing act.

Is the discrimination unlawful?

None of the exceptions in the Regulations would cover this situation.

Can the discrimination be objectively justified?  Saving cost should not be enough on it’s own to be a legitimate aim for the employer to pursue.  However‚ the employer could argue that they are pursuing the aim of business efficiency‚ and that they need the employee to remain in the job for a sufficient time after training‚ in order to recoup the cost of the course.  It remains to be seen how tribunals will treat this kind of argument.  If it is accepted that there is a legitimate aim here‚ the employer would then have to show that denying Irene the training is a proportionate means of achieving the aim; this means showing that the measure was appropriate and necessary.

In order to rebut an argument of objective justification in this case‚ it should first be argued that saving cost is not a legitimate aim in itself.  It could then be argued that the employer’s actions in this case are not proportionate.  The employer should be asked to provide evidence of the actual cost of providing the training to Irene‚ and how long it would take for this to be recouped ( if this is the argument they are relying on). It can also be argued that there is no guarantee that younger employees will remain with the employer for any length of time after the training.

As Irene wishes to continue working past the normal retirement age‚ it could be argued that a more cost effective option would be to provide the training and then allow her to continue working as this would ultimately save recruitment and training costs for a replacement.

2. Beginning action on a case

Grievance procedure

Irene must submit a grievance to her employer and give them 28 days to respond‚ before submitting a tribunal claim for age discrimination.  This may be a case where the dispute could be resolved satisfactorily without the need for legal action.  The grievance letter should set out the details of the complaint‚ stating that Irene believes the denial of training to amount to unlawful age discrimination.  Irene should request that she is allowed to undertake the same training as her colleagues. 

The employer is required to hold a meeting with Irene to discuss her grievance. 

Questionnaire procedure

The questionnaire procedure can be used‚ in addition to the grievance procedure‚ in order to obtain evidence and to ascertain whether the employer will rely on arguments of objective justification.  The following are examples of questions which could be asked.

• Why was Irene not offered the training?
• Does the employer have a policy of not offering training to employees who are approaching retirement? If so please set out the details of this policy.
• If the reason for not offering training is Irene’s age‚ or is linked to Irene’s age‚ can this be objectively justified?
• What is the legitimate aim being pursued? What alternative ways of achieving the aim were considered?
• What are the ages of all those employees who were offered the training?
• Was anyone else in the accounts department not offered the training? If so‚ what was the reason?
• What would be the cost of providing the training to Irene?

3. Taking a case

Time Limits

Irene should lodge a grievance with her employer within the first three months of the date of discrimination. The time limit for an age discrimination claim would then be extended by a further three months and so the tribunal claim must be submitted within six months of the date of discrimination. 

As this is a case where there could be argument as to the exact date the discrimination occurred‚ it is advisable to take a cautious approach when calculating the time limit.

Submitting the ET1

If it has not been possible to resolve the dispute through the employer’s grievance procedure‚ if she wishes to proceed with legal action‚ Irene must submit her claim to the tribunal within three months of the date of the discrimination.  She must set out the nature of the claim – direct age discrimination – and should refer to the comparators (younger colleagues who have been offered the training) by name.

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