Age Discrimination – are you ready?

The Employment Equality (Age) Regulations 2006 will come into force on 1 October 2006, and with them will come some of the biggest changes in employment law since the introduction of the Disability Discrimination Act in 1995.

Who is covered?

The Regulations apply not only to employees, but many others, for example: self employed people; contract workers; office holders (e.g. company directors); and job applicants.

What acts are covered?

The Regulations prohibit the following kinds of discrimination:

•  direct discrimination:   where a person discriminates against another person on the grounds of his or her age, by unjustifiably treating them less favourably than he treats or would treat other persons;

•  indirect discrimination:   this occurs where an employer's practice or policies put certain age groups at an unjustified disadvantage compared with other age groups. For example, an unjustified requirement for 15 years' experience, is one which those in a younger age group are less likely to be able to meet;

•  harassment: this occurs where conduct has the purpose or effect of violating somebody's dignity. Beware ageist jokes, birthday cards or comments!;

•  victimisation: this occurs where somebody suffers a detriment because they have previously alleged age discrimination, or because they have helped somebody else who has.

What does "unjustified" mean?

The Regulations provide that any direct or indirect discrimination is not to be seen as unlawful if it can be shown that the treatment or policy, is " a proportionate means of achieving a legitimate business aim ". This exception does not apply to harassment or victimisation.

Examples of legitimate business aims include: health, welfare and safety; facilitation of employment planning; particular training requirements; encouraging and rewarding loyalty; and the need to have a reasonable period of employment before retirement.

It should be noted that the aim of saving costs, on its own, is unlikely to amount to a legitimate aim.

Some practical effects...

There will be real effects on recruitment - job advertisements will need to be carefully worded and, in particular, thought will need to be given to the requirement for applicants to have so many years of   experience for a particular post - is it really justified?

It is common practice to link pay and benefits to length of service.   This indirectly discriminates against younger workers.   The Regulations allow service related benefits in limited circumstances, notably where the length of service of the employees affected is less than five years.

Perhaps one of the biggest impacts will be in relation to retirement.   As of 1 October 2006, employers will not be allowed to have retirement ages of less than 65, unless they can justify it.   It is likely to be virtually impossible for any employer to justify a retirement age of less than 65, so employers with lower retirement ages will need to seek immediate advice.

The Regulations also introduce complex and detailed retirement procedures.   While retiring an employee at age 65 (or over) may not be unlawful age discrimination, it will be an automatically unfair dismissal if the new procedures are not followed.

The procedures introduced by the Regulations include a new 'right to request not to retire' procedure. It is vital that this procedure is followed when dismissing on grounds of retirement, as in most circumstances, if the employer does not follow the procedure, the dismissal will be automatically unfair.   In some circumstances, the employment will also be deemed to continue and employers may find themselves liable for ongoing payment of wages.

There are special, and complex, rules which apply to retirement dismissals taking place between 1st October 2006 and 30th March 2007.

Next steps...?

All employers, if they have not done so already, should review their policies and procedures to ensure that they do not fall foul of the Regulations, and should amend them as necessary.   This especially includes: recruitment policies; pay and benefits; retirement policies; and pension schemes.  

Once the new procedures are in place it is vital that managers and employees should have age discrimination awareness training to ensure that they don't inadvertently fall foul of the new rules.   They need to know, for example, that their habit of calling someone an "old git" or a "young pup" is now no longer acceptable!

Written by Helen Essery, Solicitor at Newsome Vaughan LLP, Greyfriars House, Greyfriars Lane, Coventry, CV1 2GW. Telephone 024 76 234227 Email: helene@n-v.co.uk