ALARM SOUTH EASTEmployment Seminar

AGE DISCRIMINATION

DAVID KNAPP

JAMES MAJOR

Discrimination Legislation

Unlimited damages

Committed and competent Claimant lawyers

A good thing?

Current Position

No age discrimination legislation

But Employment Equality (Age) Regulations 2006 comes into force from 1 October 2006

Age discrimination will be unlawful

Purpose

Government’s stated aims:

– to ensure nobody is denied a job or harassed because of their age

– workers of all ages have equal chance of training and promotion

– to create a more diverse workforce by helping employers attract, motivate and retain staff

Scope of Protection

Direct discrimination

Indirect discrimination

Victimisation

Harassment

Direct and indirect discrimination can be justified if employer can show it was a proportionate means of achieving a legitimate aim

Discrimination at the start of Employment

It is unlawful for an employer to discriminate on the grounds of age:

– in the arrangements for determining to whom offers of employment should be made

– by refusing to offer employment

– in the terms on which employment is offered

The first two provisions do not apply to a person who is aged 65 or over

Advertising

Unlike other forms of discrimination, a discriminatory advert in itself is not unlawful

However, a discriminatory advert will be good evidence to show that the refusal of an application was unlawful age discrimination

Therefore:

– ensure advertisement does not contain phrases which could be related to age

– if there is a genuine occupational requirement, the advert should make that clear

Sifting, Selection and Interviews

Review selection criteria - beware of minimum and maximum ages or other phrases which could be related to age

Age will be discernible from applications

Sifters should be given Equal Opportunities Policy and should refer to the selection criteria

At interview, ensure questioning is not discriminatory and that careful notes are kept, including a note of any relevant genuine occupational requirement

Employment Agencies

Employer will be responsible for the discriminatory acts of the agency

Unlawful for an agency to discriminate against any person on the grounds of age

Clear instructions to agencies as to job and selection criteria

Discrimination during Employment

Service-related pay and benefits exception

Enhanced redundancy payments

Employment related insurance

Pensions

Positive action exception

Vocational training

Service-related Pay and Benefits Exception (1)

There is an exception for service-related pay and benefits where:

– the length of service criterion is less than five years and

– the same criterion applies to all other workers doing similar work

E.g. a requirement that employees complete two years of service before they are entitled to private health insurance will not be discriminatory

Service-related Pay and Benefits Exception (2)

There is also a general exception for service-related pay and benefits linked to a period of service in excess of five years providing:

– the benefit is given with the aim of rewarding loyalty, encouraging motivation or recognising experience and

– the aim pursued will bring business benefits

E.g. increased holiday entitlement after seven years of service will not be discriminatory providing the employer can show it rewards loyalty and benefits the business

Vocational Training

Employers and providers of vocational training cannot discriminate on grounds of age

Access to training should be available to all

Exclusion for schools and sixth form colleges

Discrimination on Termination

Default retirement age of 65 years. Employers will have to justify a normal retirement age below 65 years

If a retirement is “planned” there is a presumption that the employer is correct in saying that the reason for a dismissal is retirement

A retirement will be planned if:

– it takes effect at the national default retirement age of 65

– it takes effect at the employer’s normal retirement age (retirement ages below 65 will have to be objectively justified)

– the employer has followed the duty to consider procedure

Duty to Consider: Notification

Employer must give at least 6 months but no more than 12 months notice in writing of:

– the intended retirement date

– the right to request to work beyond the intended retirement date and

– the employer’s duty to consider the request

If the employer misses the 6 month deadline, it has a continuing obligation to notify the employee up to 14 days prior to the intended date of retirement;

Penalty for failure to notify – 8 weeks’ pay

Duty to Consider: Request to Continue Working

Employee must make their request to continue working between 6 months and 3 months prior to the intended retirement date

If the employer misses the 6 month notification deadline, the employee can make their request at any time up to the intended retirement date

Duty to Consider: Consideration of Request

Employer must meet the employee to discuss the request within a reasonable period

Employee has the right to be accompanied

Employer must then give the employee its decision as soon as reasonably practicable after the meeting but does not have to give a reason for the decision

If the intended retirement date passes before the employee is notified of the decision, employment continues until the decision is notified to the employee

Duty to Consider: Appeal

Employee has a right of appeal

Employer must hold an appeal meeting and notify the employee of the outcome within a reasonable period

Employment does not continue beyond the intended retirement date pending the outcome of the appeal

Retirement: Transitional Provisions (1)

Before 1st October 2006:

– give notice of at least 4 weeks of intended date of retirement

– on 1st October write to employee informing them of right to request working longer

– employee can then make request up to 4 weeks after the date of termination

– employer must follow duty to consider procedure

Retirement: Transitional Provisions (2)

After 1st October 2006:

– give notice of the intended date of retirement of the longer of contractual notice and statutory minimum notice

– inform employee of right to request working longer at same time

– employee can then make request where practicable up to 4 weeks before the intended date of retirement, otherwise as soon as reasonably practicable but in any event within 4 weeks after the date of termination

– employer must follow duty to consider procedure