Age Discrimination – Questions and Answers
We thought it beneficial to provide answers to some of the commonly asked questions relating to the forthcoming Age Discrimination legislation. The answers in the examples are based on what the situation will be after 1 October 2006, when the new law comes into force.
Q – In two years time I will have an employee who will have been working for the company for 20 years. As a reward, they are entitled to two weeks extra holiday. Will the legislation make this unlawful?
A – Generally any additional benefit awarded for more than 5 years service is unlawful. However, an employer could rely on the exemption for service related benefits. In order to do so, you would have to show that the measure was expected to bring a benefit to the business such as encouraging loyalty, if challenged.
Q – Our employment contracts say that the company retirement age is 60. Employees who will be 60 in December feel that they are not ready to retire. Can we force employee to retire?
A – If you force an employee to retire under the default retirement age of 65, it will be direct discrimination and unlawful unless you can justify it. It is likely that it will only be possible to justify such a retirement in exceptional circumstances. This part of the contract may be void as it would be unlawful under the Regulations.
Q – What redundancy payment are employees who are 65 entitled to if made redundant?
A – They would be entitled to a redundancy payment calculated in the same way as all other employees. The statutory redundancy payment would be 1.5 weeks for each year they have worked for the company up to a maximum of 20 years and capped at £290 per week. You should note that the payment is calculated based on 1.5 weeks because all of the service in the case is when the age of the employee is over 41. This may not always be the case.
Q – Can I refuse to recruit someone who is 68 years of age?
A – Yes – This is lawful under the new law. Employers can refuse to recruit anyone who is over 65 without having to justify it. The only exception to this is where the employer has a normal retirement age of over 65, and the applicant was under that age.
Q – I have an employee who is 66 years old and have given him eight months notice of my intention to retire him. He requested to work past the scheduled retirement date. I met with him to discuss his request and I turned his request down. He has appealed against this decision and I have held a meeting with him to discuss his appeal. I have decided to turn down his request. Am I allowed to do this?
A – You appear to have followed the correct procedure. The employee is over the default retirement age and has been given more than six months notice. Because you have followed the duty to consider procedure, you have acted lawfully, and there is no further action the employee can take.
Q – I have given a 68 year old employee two months notice that she will retire. However, she does not want to retire and says she will take further action. What can she do?
A – Because you have given less than six months notice of the intended date of retirement, employees can make a claim to an Employment Tribunal for compensation. The compensation can be up to eight weeks pay, with a current maximum of £2,320 (8 weeks x Statutory Maximum £290 = £2,320)
In addition, employees still have a right to make a request to continue working. You still have a duty to inform them of this. Employees should make the request in writing. You should then meet each employee to discuss the request. If you refuse the request the employee has the right of appeal. If this procedure is not followed correctly, the employee could claim unfair dismissal.
Q – Is it lawful to ask for a date of birth on an application form?
A – It is not automatically age discrimination to ask an applicant for their date of birth. However, if the applicant is refused the job and believes that this is because of their age, they could use the fact that you have asked for their date of birth before an Employment Tribunal. Best practice would suggest that the date of birth is removed from the application form and included in a separate equal opportunities monitoring form, which is not seen by the person making the decision to shortlist applicants or conduct interviews.
These examples are intended to provide general advice only. Should you have any other questions regarding the changes to the law or require specific advice, please contact a member of out consultancy team, who will be happy to help you.
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