1. Introduction
Since 1st October 2006, it has beenunlawful for employers and others to
discriminate against a person on the basis of his/her age – unlike
in the US, where regulations give protection to older workers, the
UK rules apply to all age groups. The UK rules are implemented by
The Employment Equality (Age) Regulations 2006.
In conjunction with our partners at D3 Consultants Ltd, we have
produced this guide, and one for employees, to help you understand
the implications of the legislation. we recommend that you read the
guide and then contact D3 if you require any further help.
2. Who is covered by the Regulations?
- Applicants for work – these can be applicants for employment
under a contract of employment, applications for work as a
self-employed person and other ‘workers’ (e.g. casual and agency
workers)
- Persons already working - as an employee, a worker or as
self-employed
- Crown employees, except those serving in the army, navy and
air force (including reservists). Police officers and civilian
employees/workers in the armed forces are covered.
- Office holders e.g. judges, Tribunal members, members of the
clergy
- House of Commons and Lords staff
- Trainee and qualified Barristers and their ‘clerks’
- Prospective and existing Partners in a Partnership
- Applicants to, and Members of, a Trade Union or Professional
Association
- Those who seek qualifications from a ‘Qualifications Body’
e.g. the Law Society, the General Medical Council etc.
- Applicants for, and existing Trainees of, a provider of
Vocational Training
- Applicants for, and existing ‘trainees’ on, a Government
Training Initiative
- Applicants to, and existing students at, an institution
for further and higher education (i.e. post 18 years)
- Applicants to, and those registered with, an Employment
Agency
- Applicants, to and Members of, an Occupational Pensions
Scheme
3. Who has obligations under the Regulations?
All of the persons/bodies indicated in section 2 are liable i.e.
employers, Vocational Training Providers, Employment Agencies,
Occupational Pension Scheme Trustees/Managers etc.
- These persons/bodies also have an obligation not to
discriminate or harass former parties to the ‘employment’
relationship where such discrimination arises out of or is
closely connected to that relationship. The ACAS guide gives the
example of a discriminatory employment reference. Another
example might be refusing to provide a reference on the ground
that the person has previously pursued a claim of age
discrimination.
- There is also the concept of secondary liability. The most
obvious examples are:
- An Employment Agency accepts discriminatory instructions
from its clients - both client and Agency would be liable
- Principals are jointly liable for discriminatory act by
their agents – so an employer would be jointly liable for
acceding to discriminatory acts by an employment agency,
even though they did not instruct the agency to discriminate
- Employers may be liable for the discriminatory acts of
their employees, whether or not they are done with the
employer’s knowledge and/or approval
- Employers may also be liable if they fail to protect
their employees from discriminatory acts by third parties in
the workplace e.g. in a racial discrimination case a hotel
group was held to have discriminated against two black
waitresses for failing to prevent them being exposed to
racist abuse by a comedian and some members of the audience.
The same principle would apply to ‘sexist’ or ‘ageist’ abuse
Individuals can also be held liable. So someone who feels they
have been discriminated against by a specific person(s) acting in
the course of their employment can bring an action against both that
person(s) and their employer. Interestingly, if that same individual
harassed them outside of work and unrelated to their work, not only
would the employer escape liability, the ‘victim’ would have no
legal avenue open to pursue their claim.
4. Where do the Regulations apply?
The Regulations apply only to employment and contract work ‘at an
establishment in Great Britain’ (i.e. England, Wales and Scotland).
So this would include a person working wholly or partly in GB.
However, it will also cover workers who work wholly outside GB if
three criteria are met:
- The employer has a place of business in GB, and
- The worker is ordinarily resident in GB, and
- The work they do or have applied for, although carried out
abroad, is for the purposes of that GB business
5. What is discrimination?
The Age regulations adopt similar definitions to those applied in
most other strands of anti-discrimination law. There are four types
of discrimination:
Direct Discrimination – where an employer, on the grounds
of a person’s age (or apparent age), treats him/her less favourably
than others are or would be treated. So a refusal to interview
anyone over the age of 50 would almost certainly represent direct
discrimination. There is a possible defence in that it is possible
to treat some less favourably than others if the treatment is a
‘proportionate means of achieving a legitimate aim’ – this is the
so-called ‘objective justification test’ which does not appear in
sex, race and sexual orientation discrimination where a much
narrower ‘genuine occupational requirement’ justification operates
Indirect Discrimination – this applies where an employer
imposes or operates (and cannot ‘objectively justify’) a provision,
criteria or practice which puts people of a particular age or age
group at a disadvantage. For a person to successfully claim, they
must have actually been put to a disadvantage. So a requirement for,
say, “10 years’ sales experience” would place those below the age of
around 28 at a disadvantage. So unless that length of experience can
be objectively justified, indirect discrimination will have
occurred.
Harassment – this is defined as conduct by one or more
persons which, on the grounds of age, has the purpose or effect of
violating someone’s dignity and/or of creating am intimidating,
hostile, degrading, humiliating or offensive environment. Such
conduct might be name-calling, unwanted offensive jokes, verbal
abuse and/or ignoring. There can be no ‘objective justification’ of
harassment and it is essentially the perception of the ‘victim’ that
counts. The only possible defence is that the so-called victim is
being oversensitive and the conduct complained of was inadvertent
and could not reasonably be taken as offensive. Note that
‘bullying’, as such is not a category of discrimination, but
bullying behaviour, if based on age, could certainly be regarded as
harassment.
Victimisation – this is less favourable treatment of
someone, not specifically due to their age, (which would amount to
direct discrimination), but because they have done one or more of
four so-called ‘protected acts’: brought proceedings under the Age
discrimination Regulations; given evidence or information in
connection with proceedings brought be someone else; made
allegations that the Regulations have or may have been contravened;
or done anything else under or by reference to the Regulations.
6. What are the Exceptions?
Genuine Occupational Requirement (GOR) – as with the other
anti-discrimination strands, the Age Regulations include a GOR
exception so that if there is a determining requirement to employ
someone of a particular age or age group, then direct and possibly
indirect discrimination is permissible (but not harassment or
victimisation). If genuine, then a GOR is likely to be ‘objectively
justifiable’ so its inclusion in the Regulations is probably
superfluous in any event and there are very few instances where a
GOR will apply. The obvious example is in the employment of actors,
but even here employers will need to be careful not to draw the
requirement too narrowly.
Positive Action – although positive discrimination will
not be lawful (e.g. employing someone because of their age), it will
be open to employers and training providers to take ‘positive
action’ which aims to prevent or compensate for disadvantages
suffered by people of a particular age or age group. For example, if
an employer has an ageing workforce, it may be legitimate to place
vacancy adverts in a magazine more likely to be read by younger
people. It would perhaps be unwise to only advertise here, but
provided appointments were made on merit, then seeking a greater
number of applications from younger people would be a legitimate
aim.
National Minimum Wage – the age bands for younger workers
are specifically permitted. They are held to be objectively
justified in making it easier for younger workers to find work.
Service-related benefits – the regulations permit pay and
benefits (e.g. holidays and sick leave/pay entitlements) to be
service related, without them being regarded as discriminatory.
However, any service criterion of greater than 5 years will need to
be justified as affording a legitimate and real business need.
Interestingly, the entitlements to statutory minimum notice continue
to benefit those with up to 12 years’ service. However, where
employers provide contractual notice periods greater than the
statutory minima those notice periods may well be found to be
indirectly discriminatory if they are based on length of service.
Similarly, contractual rights to pay in lieu of notice may well be
deemed to benefit older employees and so be discriminatory. In both
these instances it would be down to the employer to objectively
justify the practice, presumably using similar arguments that the
Government used to justify giving exemption to service- related
benefits and retaining age/service-based calculations for redundancy
and unfair dismissal awards.
Default Retirement Age – rather against its stated
preferred position in the lead up to passing the Regulations, the
Government decided to permit employers to continue with a
‘compulsory’ retirement age, provided that age is no lower than 65.
A blanket retirement age lower than 65 will need to be objectively
justified if it is not to be discriminatory. So, provided certain
procedures have been followed, it will be fair to dismiss someone on
grounds of retirement. This provision is to be reviewed in 2011 with
a view to seeing whether the default retirement age should be raised
or abolished altogether (the latter being the Government’s preferred
option during the consultation)
Job applicants over or nearing normal retirement age. It
will be lawful not to consider applicants or to appoint someone who
is either above the employer’s normal retirements age (65 or over)
or who, within 6 months, will reach that age. Where an employer has
no ‘normal’ retirement age it will be permissible to use age 65 as
the cut-off.
Redundancy payments – the formula for calculating
statutory minimum redundancy payments (which are age and service
related) will remain and it will be open for employers to continue
to enhance such payments where the their enhancement formula closely
mirror the statutory formula
Pensions – the Government has allowed employers and
trustees to retain most age-based rules in their pension schemes on
the basis that to unravel them would take considerable time and
expense and might discourage employers from providing decent pension
benefits. This is a complex area and those wishing to learn more
should see the DTI’s guide entitled ‘The Impact of Age Regulation on
Pension Schemes’ (see
http://www.dti.gov.uk/files/file28230.pdf)
Life Assurance – denying life cover on the basis of age is
likely to be discriminatory (it is considered unlikely that an
‘objective justification’ argument based on cost is unlikely to
succeed). However, some employers help arrange life cover for those
who have retired early on ill-health grounds. It will be lawful to
discontinue such arrangements after the individual reaches the
employer’s normal retirement age or 65 where there is no such age.
Acts under statutory authority – any act done because it
is required under any statutory provision will not be unlawful. If a
statutory provision gives discretion or permission, then this
exception will not protect the exercise of that discretion in a
discriminatory way.
National security – any act done ‘for the purpose of
safeguarding national security’ will not be unlawful under the
Regulations
7. Retirement and Changes to Unfair dismissal rules
Dismissal where the reason or principal is the person’s age will
be an act of direct discrimination, unless the dismissal is a bona
fide retirement. Similarly, a non-retirement dismissal may represent
indirect discrimination e.g. redundancy selection criteria
indirectly discriminate by placing certain age groups at a
disadvantage.
The Regulations now add ‘Retirement’ to the list of potentially
fair reasons for dismissal of employees. The corollary to this is
that employees will now be able to claim at an Employment Tribunal
that their dismissal on the grounds of retirement is unfair,
something that has previously not been possible. These provisions do
not apply to other categories of workers, to Partners and to
independent contractors, so it will still be directly discriminatory
to terminate their contracts simply on the grounds of their age.
As with much Employment Law, the retirement provisions are
unnecessarily complex, but in essence they are as follows:
Whether or not an employer has a ’normal retirement date’ (age 65
or over), it will not be regarded as age discrimination or unfair
dismissal if:
- The dismissed individual is at or over the default
retirement age of 65, and
- The dismissal is ‘by reason of retirement’
Whether the second condition applies is really a question of
process.
An employer can assume that it is not age discriminatory nor
unfair if he/she ensures that:
- The normal retirement age (if there is one) is 65 or over
- The employee being retired is at or above that normal
retirement age at the intended date of retirement
- Between 6 and 12 months prior to the intended retirement
date the employee is notified in writing of when it is intended
to retire them and of their right to request to continue to work
beyond the date. They can request to continue indefinitely, for
a stated period or until a stated date
- a meeting is held with someone who does request to continue
working; the individual is informed of the decision; and that
any appeal against that decision is considered at a meeting.
Individuals have the right to be accompanied at meetings. The
employer is under no obligation to provide a reason for refusing
a request to continue working or for permitting continued work
for a shorter period than requested
- the employee is dismissed at the intended date
If this process is followed the employer can happily choose to
keep some individuals who ask to continue and dismiss others,
provided it is not discriminatory on other grounds (sex, race,
disability etc.).
There are provisions which allow the employer to rectify a
failure to notify with in the 6-12 month period, but these are best
not relied upon.
Somewhat strangely, an employer who has no normal retirement age
can still lawfully dismiss by reason of retirement someone who has
reached the age of 65, provided they have followed essentially the
same procedure
There are transition arrangements for employees due to retire
between 1st October 2006 and 31 March 2007
8. So, what should employers do?
As a matter of urgency they should review, in the light of the
above:
Their recruitment and selection processes:
- What is written in job ads, in people/ job specifications
and other recruitment literature e.g. not over-specifying
minimum length of experience or unnecessarily specifying a
degree requirement
- Their graduate recruitment schemes and how they recruit
people to them e.g. advertising for ‘recent’ graduates may well
be indirectly discriminatory
- Where they advertise jobs
- How they ensure that shortlisters do not use age as a
selection criteria – e.g. is date of birth or date of schooling
on an application form?
- What is said and asked at interview
- What selection methods are used e.g. are some of the tests
used discriminatory?
Their contractual conditions relating to pay, benefits and
notice periods
Their training & development policies and practices,
particularly who has access to development and how people are
nominated/selected
Their normal retirement age – should you have one at all?
If there is one does it need to be increased?
Their retirement procedures:
- Giving notice of retirement
- Giving employees the right to request to continue working
and having a procedure to deal with such requests
Conclusion
All employers must make sure that their working practices ensure
that they comply with the new legislation. If past experience is
anything to go by, there will be a large increase in employment
tribunal cases as employees test the legislation. Employers will
want to minimise the time and expense involved by ensuring that they
comply.
With older workers, employers can take positive steps in order to
ensure that employees do not feel discriminated against. One such
step is to allow them to attend one of our
Pre-retirement courses,
which will help them to prepare sensibly for retirement.
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