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The Employment Equality (Age) Regulations 2006
Under the Regulations age discrimination in employment became unlawful on 1st October 2006. The pensions aspects of the Regulations take effect on 1st December 2006. To view the Regulations go to http://www.opsi.gov.uk/si/si2006/uksi_20061031_en.pdf. This legislation is regarded as the most radical change in employment law for a generation. The Regulations are based on familiar concepts found in other strands of discrimination law and cover everyone either in or seeking employment or vocational training - they are not just about older workers. Claims will normally be brought at an employment tribunal and there will be no limit on compensation. UK age regulations are based on the EU equal treatment directive which aims to improve access and opportunities in training and employment for people of all ages. Age Discrimination - The Basics The Regulations cover the same forms of discrimination on the grounds of age, or perceived age, that employers are familiar with in the context of discrimination in other areas, such as sex and race. These are: direct discrimination (less favourable treatment on the ground of age); indirect discrimination (applying an apparently age-neutral criterion that has disparate impact on a particular age group); and victimisation. Age-related harassment is also prohibited. Harassment is a relatively new statutory concept in discrimination law and is defined as conduct that is unwanted and which has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. The Regulations cover the whole of the employment relationship, from recruitment and selection through pay and benefits (including pensions and insurance) and training and promotion to termination, redundancy and retirement. Employers will have a defence if they can objectively justify age-discriminatory treatment or practices. For the first time in UK law, the defence of justification will be available in cases of direct discrimination, as well as cases of indirect discrimination. To establish this defence, the employer will have to show that the age-discriminatory treatment or practice is a "proportionate means of achieving a legitimate aim". However, the indications are that the defence of justification will be harder to establish than this language suggests. The DTI's Consultation Document stated that: "The test of objective justification will not be an easy one to satisfy". There will also be a defence if there is a genuine occupational requirement for an age-related characteristic. It is clear that this defence is likely to apply in very few cases. Recruitment and Selection In recruitment and selection, for instance, it will only be lawful to specify a particular age range for a job where the employer can show either that this is objectively justified or that there is a genuine occupational requirement for the person to be of a certain age. More generally, employers must audit carefully their recruitment advertising and procedures. For example, minimum requirements for experience or qualifications are likely to constitute indirect discrimination against younger persons - employers in most cases should therefore avoid language with age-specific connotations, such as "mature", "lively" or "attractive". When processing job applications, discrimination claims could readily arise if employers make stereotypical assumptions about potential candidates and their state of health, for instance, or their managerial expertise, because of their age. However, in relation to recruitment only, there will be an upper age limit of 65 - therefore discrimination on the grounds of age will be permitted when recruiting a person of 65 or over. During Employment It will be permissible to take certain types of "positive action", if the employer believes that persons of a particular age group are disadvantaged in relation to particular work and wishes to prevent or compensate for that disadvantage. This could include the provision of training in IT skills for older people whose work has become computerised, for instance, and where a younger employee is already sufficiently skilled. Many employers currently provide enhancements to pay and benefits based upon length of service. It is common to give additional holiday entitlement and longer paid sick leave or to use length of service as a basis for salary reviews. Under the Regulations, this would potentially amount to indirect discrimination, as it is likely to be to the detriment of younger workers. The Regulations, however, provide that it will be lawful to continue to base differences in pay and benefits on length of service, but only by reference to a maximum period of 5 years. For periods of service longer than 5 years, the employer will have to show that he believes there to be an advantage from rewarding loyalty, encouraging motivation or recognising experience. In both cases, it will be necessary to treat all those in similar circumstances (apart from length of service) the same. Employers will also be entitled to differentiate between workers on the grounds of age if they are required or permitted to do so by legislation, such as the National Minimum Wage regime, or if they provide benefits that replace statutory benefits based upon length of service but are more generous. Statutory redundancy payments (SRP's) are the obvious example - employers often mirror the statutory scheme but provide an increased weekly amount in place of the statutory maximum. This will not be unlawful, except that it should be noted that the SRP scheme will be amended so that the upper age limit of 65 will disappear, as will the tapering of the payment after age 64. It is also proposed that there will be no distinction for service before or after the age of 41 as at present. The 20 years' maximum service provision will be retained. Retirement and Dismissal The Regulations provide for a national default retirement age of 65, meaning that it will not be unlawful to dismiss a person, by reason of retirement, at age 65 or over. If an employer wishes to have a retirement age of less than 65, he will have to objectively justify it. When an employer wishes to retire an employee over 65, he will have to follow a complex procedure which involves notifying the employee in writing, between 6 and 12 months before the intended retirement date, that he or she has the right to request to work beyond the intended retirement date. If such a request is made, the employer must consider it and must meet with the employee to discuss it and provide a response as soon as reasonably practicable. The employee has the right to appeal any decision. Unfair dismissal The current exclusion for employees beyond "normal retiring age" from bringing an unfair dismissal claim will go - but the employer will have a defence if the employee was 65 or over and the employer can show that he followed the procedure outlined above. Enforcement Enforcement of the Regulations is the same as that of other discrimination legislation: an employee will need to follow the statutory grievance procedure before bringing a claim and the Employment Tribunals will have jurisdiction to hear the claim. The Questionnaire procedure (familiar in relation to other areas of discrimination such as sex and race) will also apply. Acknowledgements to Michael Bronstein, Partner, and Carol Aylott, Associate, Salans. Michael Bronstein, Partner, Salans Tel: 020 7429 6096 mbronstein@salans.com Carol Aylott, Associate, Salans Tel: 020 7429 6069 caylott@salans.com |
