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Planning Retirement Online

The Age Discrimination Legislation and how it Affects Employers

 

In conjunction with our partners at D3 Employee Solutions, we have produced this guide, to help you understand the implications of the legislation.

The guide consists of a short summary followed by links to a longer downloadable pdf article for those who want to read it in more detail.

Introduction

Since October 2006, it has been unlawful for employers and others to discriminate against a person on the basis of his/her age. The original 2006 Regulations have now been incorporated into the Equality Act 2010. Also, from 1 October 2011 there is no longer a default retirement age when employers can force people to retire just because they have reached 65.

Age discrimination legislation therefore applies effectively to everyone who is applying for work and who is in work. Employers, Vocational Training Providers, Employment Agencies, and Occupational Pension Scheme Trustees/Managers etc. are all bound by the law and cannot discriminate against any individual because of their age; neither can they force anyone to leave employment just because of their age.

There is also the concept of secondary liability. This means that if, for example, an employment agency accepts discriminatory instructions from an employer and carries them out, both parties are liable. An employer might be liable for the discriminatory activities of an employee and employers may also be liable if they fail to protect their employees from discriminatory acts by third parties in the workplace. For example, 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.

Types of discrimination

The Regulations apply only to employment and contract work ‘at an establishment in Great Britain’ (i.e. England, Wales and Scotland). There are six kinds of discrimination:

  1. Direct Discrimination – where an employer, because of a person’s age (or apparent age), treats him/her less favourably than others are or would be treated
     
  2. Indirect Discrimination – this applies where an employer imposes or operates a policy which puts people of a particular age or age group at a disadvantage
     
  3. 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 an offensive environment.
     
  4. Victimisation – where a person suffers a detriment because they have made a complaint(s) in connection with the Equality Act 2010 (e.g. to their employer or to an Employment Tribunal) or assisted someone else in making such a complaint
     
  5. Instructions to discriminate – it is unlawful to instruct, cause or induce someone else to discriminate
     
  6. Aiding discrimination – it is unlawful to help another to discriminate

The Equality Act also brings in the concepts of associative and perceptive discrimination. So it will be unlawful to discriminate against a person because of the age of someone else with whom they ‘associate’ e.g. an elderly relative or a young child; and it will be unlawful to discriminate because of someone’s perceived age or age group.

Exceptions

There are some exceptions to the prohibition on age discrimination in an employment context, including:

  1. Direct discrimination or a fixed retirement age can be ‘objectively justified ‘ although this is likely to be a hard test to pass
  2. Direct discrimination may be justified if there is an occupational requirement to employ someone of a particular age or age group
  3. Indirect discrimination can also be justified in certain circumstances
  4. The bands for younger workers under the National Minimum Wage will still be allowed.
  5. Service-related benefits will still be allowed, with certain provisos.
  6. Redundancy payments – the formula for calculating statutory minimum redundancy payments (which are age and service related) will remain.
  7. Pensions – the Government has allowed employers 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.
  8. Life Assurance – for employers not to provide life cover on the basis of age is likely to be discriminatory. However, it will be lawful to continue to provide life assurance to a person who has retired due to ill-health but discontinue that cover when they reach normal retirement age (if such can be justified) or age 65.
  9. It will not represent discrimination against older employees for employers to provide childcare support to parents

 Conclusion

All employers must make ensure that their working practices comply with the legislation. Since 2006 there have been a significant number of age discrimination claims – there were 6,800 in 2010/11. Employers will want to minimise the time and expense of defending claims 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 a Pre-retirement course, which will help them to prepare sensibly for retirement, whenever they choose to retire.

More detailed guide

For a much more comprehensive account of the Age Discrimination legislation, read the pdf article: Age Discrimination Legislation and how it affects employers.

We recommend that you read the guide and then contact john@d3hrsolutions.co.uk if you require any further help.


You might also like to visit agediscrimination.info which is a one-stop source of the latest news, statistics, law and cases on age discrimination issues. It is a useful resource for anyone interested in ageism and age discrimination issues.


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