Employers Beware!

Age Discrimination- a new right for employers from 1st october 2006

A useful summary of the new legislation on age-discrimination, and helpful action list by Philip Landau, Solicitor, of London law firm Landau Zeffertt Weir.

The Employment Equality (Age) Regulations 2006 will come into force on 1st October 2006.

The regulations will:

The regulations will also introduce:

5 key questions and answers regarding the new Age-Discrimination law.

  1. Why have the age discrimination laws been introduced?

    There are already discrimination laws in place for race, sex, disability, sexual orientation and religion, but there is nothing in place for age-related discrimination. The working population as a whole is getting older. The number of people aged under 50 is set to fall by two per cent by 2016, while the number aged between 50 and 69 is set to increase by 17 per cent. Many people are choosing to work longer either because they have to in order to maintain a minimum standard of retirement, or simply because they want to due to changes in lifestyle.

  2. Who does the law cover?

    • All employees, contract workers, office holders, the police and members of trade organisations. It also covers the self -employed.
    • People who apply for work.
    • People taking part in or applying for employment related vocational training

  3. What does the new law mean?

    The main points are:-

    • Employees will be able to make a claim for unfair dismissal beyond the age of 65.

    • Employees will be able to claim a statutory minimum redundancy payment after the age of 65.

      Age bands for calculating statutory redundancy payments and basic awards for unfair dismissal will remain unchanged, using a multiplier based on a number of weeks pay, ranging from half a week for younger employees to one and a half weeks for older employees.

    • Employees cannot be forced to retire below the age of 65 (the default retirement age), unless it can be justified. They will have the right to request to work beyond 65.

      Under the new regulations the default retirement age is 65. If an employer's normal retirement age is below 65, it will need to be objectively justified.

      Employees must be informed of their expected retirement date at least 6 months and no more than 12 months of the planned retirement. At the same time, employees must be advised of their right to request to work longer if they wish to. This is a statutory right.

      An employee's request to work beyond 65 will need to be made in writing as soon as practical and where possible, at least 4 weeks before the end of the proposed retirement date. The request can even be made up to 4 weeks beyond termination of the contract of employment, but not after this date. A meeting to discuss the request should be held by you as employer within a reasonable period after the employee's request has been made.

    • The Regulations will stop age - discrimination in employment and work-related training.

      Employers will have to make sure that any redundancy policies do not directly discriminate against older employees. They should also not discriminate indirectly - for example, by selecting only part-time workers for redundancy, when a large number of these may be older workers. Employers will not be able to discriminate in respect of the benefits they provide to employees over 65.

      The only exceptions will be where an age requirement can be objectively justified.

  4. Are there any circumstances when treatment on grounds of age will be lawful?

    • Exemptions will be allowed on Genuine Occupational Requirement (GOR) grounds and if there is an objective justification. However, both are likely to be difficult to prove.

    • The 'test of objective justification', means employers will have to show with evidence that they are pursuing a legitimate aim and that it is a proportionate means of achieving that aim.

    • The legislation will protect individuals or companies who are forced to discriminate on age grounds in order to comply with other legislation e.g. bar staff serving alcohol must be at least 18.

  5. Do I need to worry if there is a genuine redundancy situation for an employee who has reached 65?

    • If the principal reason for the dismissal is redundancy and not because of an employee's age, then the redundancy will be legal and the employee will be entitled to redundancy pay at age 65 or above as they would at any other age. If the retirement procedure is used to dismiss an employee, and the contract of employment terminates on the intended date of retirement, the reason for dismissal will be retirement and the dismissal will be fair. Remember though that you will need to justify the reason for dismissal on retirement grounds.

  6. How will the age discrimination Regulations affect the recruitment process?

    The Regulations are designed to stop discrimination in the various elements of the recruitment process.

    In particular, this will affect:-

    Methods of recruitment

    Employers should seek to avoid procedures where recruitment takes place by word of mouth in a workplace dominated by young workers, where the age-balance of the workforce does not reflect that of the labour market at large. Such a vacancy may never come to the attention of older people, thus perpetuating the age imbalance.

    Some employers have traditionally recruited graduates by taking part in the annual university "milk round". This is potentially indirectly discriminatory against older workers, who are statistically less likely than younger workers to be recent graduates. Employers will need to ensure that they do not recruit by way of the milk round alone but also encourage applications from elsewhere.

    Where an employer chooses selective advertising in a magazine, say, aimed at the under forties, this may well be discriminatory against people over that age, in that the arrangements for offering employment are not likely to reach the attention of the over forties.

    In short, employers should take steps to ensure that their recruitment method offers opportunities to as diverse an age group as possible.

    Advertisements

    Some examples of job adverts that could lead to claims under the new rules are:-

    "This is an ideal opportunity for a young candidate".

    or

    "We seek applicants between the ages of 18 and 30".

    Any reference to age or time of life is likely to evidence an intention to discriminate directly and would need to be justified under some of the limited exceptions under the Act. Descriptions such as a "dynamic and energetic person" in a recruitment advertisement may be inferred as a bias against older candidates and could therefore be discriminatory.

    Recruitment Literature

    If recruitment literature communicates the image of, for example, a young workforce, then it might lead to successful discrimination claims. Employers should be aware of hidden messages that may be apparent from any promotional literature.

    Application Forms

    Whilst an employer asking a job applicant to provide his or her date of birth on an application form is not in itself discriminatory, by simply asking the question, this will open up the allegation that age has played a part in the recruitment process.

    Under the Regulations, employers will be justified, however, in asking whether a job applicant is within six months of the age of 65.

    If an employer can show a logical reason why age related information on an application form was asked for, and can show that the recruitment process was carried out in an appropriate manner, then it is unlikely to be discriminatory.

    Job Descriptions and Selection Criteria

    There should be a clear and accurate job description which should state what skills and competencies are required of an applicant. If an employer has devised a selection criteria, then this should be age-neutral where possible. For example, where an employer's job description requires an applicant to be of a certain age, or within a certain age range, this will be directly discriminatory unless it is objectively justifiable.

    Employers sometimes require job applicants to have a minimum number of years relevant experience. This is potentially indirectly discriminatory against younger workers, who have not had the opportunity to obtain the experience required. Such a requirement must therefore be objectively justified.

    Similarly rejecting a candidate as "over-qualified" on the basis that he or she has too much experience, could amount to indirect discrimination against older workers. Older workers are of course more likely to be experienced than their younger counterparts.

    Shortlisting

    An employer's shortlisting process should be carried out using clear, objective and non-discriminatory selection criteria. Ideally those doing the shortlisting should base their decisions on skills and ability alone.

    Interviews

    Interview questions can amount to discriminatory treatment and should avoid age related questions where possible. All applicants should be asked the same questions rather than create differences in the questioning of different applicants from different age backgrounds, from which discrimination could be inferred.

    Personality Assessments

    Employers should be wary of avoiding unconscious age discrimination when judging whether applicants have the right personality for a job, or whether they will "fit in". If employers do conduct personality or behaviour assessments of any sort, the persons conducting these assessments should be trained to ensure that the assessments do not throw up discriminatory results.

  7. How do the Regulations affect the use of employment agencies?

    The Regulations provide that if an employer (as principal) gives an employment agency (as agent) active or passive authority to discriminate in selecting candidates for interview, the employer could potentially be liable, along with the agency, for age discrimination.

    Accordingly if a recruitment agency is used, the employer will need to be sure that the agency acts appropriately and in accordance with the employer's equality and diversity policies.

    Furthermore, employers should even be careful when deciding which employment agency or agencies to use. For example, if an employer uses an agency specialising in finding work for the over fifties, an employer's use of that agency alone might limit the opportunities for the young and may therefore be indirectly discriminatory.

    An employer's use of a wide range of employment agencies and Job Centres will help to avoid discrimination. Also, most reputable employment agencies will have detailed equal opportunities policies themselves, which will aim to eliminate both direct and indirect discrimination.

An action checklist for employers

Disclaimer: This article has been written as a basic guide to the Age Discrimination Laws, introduced on the 1st October 2006, and should not be used as legal guidance. You should seek the advice of a legal professional to ascertain how any legislation affects you or your company.