New Law on ” Age Discrimination” from 1 October 2006
The Employment Equality (Age) Regulations 2006 (“the Age Regulations”) come into force on 1 October 2006. From this date onwards it will be unlawful for employers to discriminate against their employees, applicants for jobs or contract workers on the grounds of age. The Regulations cover people of all ages, both old and young.
Key points to note are as follows:
- Do your recruitment practices exclude or discourage any individual from applying for any position on the grounds of age?. For example, do your advertisements require candidates to be “dynamic,” “experienced” or “mature?”
- Do your application forms require people to give their dates of birth?
- Do your job descriptions specify the number of years’ experience required in a particular field?
- When you interview candidates are your interviewers trained to ensure that the interview focuses on skills and abilities only?
Essentially, you must ensure that you are focusing on the applicant’s capabilities rather than their age and must avoid making generalised or stereotypical assumptions on the grounds of age.
Exemptions apply to the above and to other aspects of age discrimination if there is a Genuine Occupational Requirement or if there is an objective justification. However these exemptions must not be treated lightly as they are likely to be difficult to prove and evidence will be required. The test of objective justification involves having to show that the employer is pursuing a legitimate aim and that the practice pursued is a proportionate means of achieving that aim.
Is your normal retirement age less than 65? If so this will need to be adjusted unless it can be objectively justified.
When an employee is approaching retirement age an employer has a duty to notify the employee in writing of the intended retirement date and his or her right to make a request not to be retired. This notification must take place no more than 12 and not less than 6 months before the intended retirement date. Where the retirement date falls before 1 April 2007 the employer must give at least the period of contractual notice or where the contractual period is more than 4 weeks, at least 4 weeks. An employee who wishes to make a request not to be retired must make this 3 to 6 months before the intended retirement date unless this is before 1 April 2007 when the request may take place up to 4 weeks after termination. Subsequently the employer should hold a meeting to consider the request and arguably the employer has a duty to act in good faith when making a decision.
Pay and Benefits
Benefits which are related to the employee’s length of service can be lawful but only if the employee with a lesser benefit (e.g. on lower pay) has less than 5 years’ service. If an employee has service of more than 5 years then any lesser benefit may only be lawful if the employer is able to show that in providing greater benefits to employees with longer service, the employer is fulfilling a business need (e.g. rewarding loyalty or experience).
- Do all members of staff have access to the same training opportunities?
- Are objective criteria used for accepting or turning down training requests?
An employer must ensure that its promotion process is transparent and all employees are able to apply for promotions regardless of age or length of time spent at a particular grade. Objective criteria must be applied when considering candidates for promotion.
Care must be taken in adopting selection criteria for redundancy purposes. Any redundancy selection process must not discriminate against employees on grounds of their age. It is presently unclear whether the established practice of using the selection criteria “last in, first out” would offend the Age Regulations. It is likely this will only become clear once the Employment Appeal Tribunal has decided a case on this point. Reference should be made to our redundancy guidance for further information in this area.
It is important that all employers carry out an audit to ensure that their policy and procedures will not fall foul of the Age Regulations. Employers with any doubts should contact Linder Myers Solicitors, who can advise on the above issues.
This information is based on the law as at September 2006. The information should be treated as a general overview of the main points to consider but should not be treated or relied upon as definitive advice in relation to the specific circumstances of your business. It is often stressed by Employment Tribunals that each case should be assessed on its own particular circumstances.Find out more about our Employment department