Age Discrimination
Introduction
From the 1 October the Employment Equality (Age) Regulations 2006 make it unlawful to discriminate against workers, employees, job seekers and trainees because of their age.
A summary of what the regulations say
The regulations make it unlawful on the grounds of age to:
• Discriminate directly
• Discriminate indirectly
• Subject someone to harassment.
• Victimise someone
• Discriminate against someone, in certain circumstances, after the working relationship has ended
Employers may be responsible for the acts of employees who discriminate on age related grounds. This makes it important to train staff about the regulations. The upper age limits for unfair dismissal and redundancy pay will be removed.
There will be a national default retirement age of 65, making compulsory retirement below 65 unlawful, unless objectively justified. Employees will have the right to request to work beyond 65 or any other retirement age set by the company.
There are limited circumstances when discrimination may be lawful. You may treat people differently on the grounds of their age if you have an objective justification.
An objective justification allows employers to set requirements that are directly age discriminatory however, you would need to provide real evidence to support any claim of objective justification.
What do the regulations mean?
Direct discrimination
Direct Discrimination is less favourable treatment because of someone’s age.
For example it will be unlawful on the grounds of age to:
• Decide not to employ someone
• Dismiss them
• Refuse to provide them with training
• Deny them promotion
• Give them adverse terms and conditions
• Retire an employee before the employer’s usual retirement age (if there is one) or retire an employee before the default retirement age of 65 without an objective justification)
Indirect discrimination
Indirect discrimination means selection criteria, policies, benefits, employment rules or any other practices, which although they are applied to all employees, have the effect of disadvantaging people of a particular age unless the practice can be justified. Indirect discrimination is unlawful whether it is intentional or not.
Lawful discrimination
It is not unlawful to discriminate on the grounds of age if:
• There is an objective justification for treating people differently.
• Where a person is older than, or within 6 months of the employer’s normal retirement age, or 65 if the employer does not have one, there is a specific exemption allowing employers to refuse to recruit that person.
• The discrimination is covered by one of the exceptions or exemptions given in the regulations – for example, pay related to the National Minimum Wage.
• There is a genuine occupational requirement (GOR) that a person must be certain of age – for example, if you are producing a play, which has parts for older people or younger children.
Retirement
The Regulations set a default retirement age of 65, which will be reviewed in 2011. This means that you can retire employees or set retirement ages within your company at or above 65. Retirements or retirement ages below the default retirement age will need to satisfy the test of objective justification, as previously mentioned.
However, you do not have to have a fixed retirement age. Employees have a right to request to continue working beyond their retirement date and you have a duty to consider such requests.
You are obliged to think about each request on an individual basis – taking into account opportunities to vary the employee’s hours or the duties they perform. Although you should bear in mind that you are under no obligation to agree to such requests
A fair retirement is one that:
• Takes effect on or after the default retirement age (or on or after the employer’s normal retirement age – if there is one) and
• Where the employer has given the employee written notice of the date of the intended retirement and told them about their right to request to continue working.
If you have employees who are approaching 65 then the following guidelines should be observed:
You should notify the employee of the intended date of retirement, and his right to request a postponement of retirement. This should be done a minimum of 6 months in advance and no more than 12 months in advance.
The employee may request the postponement of retirement setting out the proposed terms. This should be within 3 to 6 months of the proposed retirement.
If a postponement is requested, you must either accept the terms suggested by the employee or hold a meeting with the employee to discuss the request. The employee has a right to be accompanied at the meeting, which should take place within a reasonable period of the receipt of the request.
Following the meeting, you must provide notice of the decision of the meeting to the employee. You are not required to provide any reason for the decision; however, you may wish to do so, provided the reasons are not discriminatory. This should be done as soon as reasonably practicable after the meeting.
The employee should be given the opportunity to appeal against the decision. Any appeal should be received and considered within a reasonable time.
Finally, it is worth noting that where an employer fails to follow the set procedure, an application can be made to an employment tribunal. The employment tribunal can make a minimum basic award of four weeks capped pay when the dismissal is unfair because the employer did not consider a request to continue working after 65 or the employer’s normal retirement age.
Indicators of Best Practice…
… in Recruitment
• A workforce which is age diverse
• Applications for vacancies are from all age groups
• Person specifications and job descriptions are objective, being base solely on skills, relevant experience and capacity to do the job
… In Selection
• Your company has an age positive written procedure for selecting employees
• All selectors have received training in equal opportunity selection techniques
• You monitor statistics to be sure that candidates of all age groups are short-listed, interviewed and appointed
… In Promotion
• Your organisation has a written policy which explains how promotion decisions are made and in which age does not play a role
• Employees are aware of and understand the policy on promotion and career development
• Evaluation from appraisals/performance reviews informs decisions on whether to promote
• There are people of all different ages at different levels throughout the organisation
… In Training and Development
• Employees of all ages have a variety of skills which make the organisation more effective
• Employees of all ages are benefiting from training and development
• Staff turnover, absences and accidents are reduced
… In Redundancy
• There are objective criteria for redundancy, based on the requirements of the organisation
• A communication plan exists for the redundancy process
• Retention of key skills for the future well-being of the organisation
… In Retirement
• Your company has a retirement policy, which has been communicated to all employees and is fairly applied
• Your company has a succession plan, which allows the organisation to retain or transfer skills and knowledge that would otherwise be lost through retirement
• You provide your employees with support and guidance
• Employees have more choice and flexibility
Draft Age Discrimination Policies are available from ELC, or alternatively, you can contact a member of our team for further guidance.
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