Age discrimination - are you prepared for the change?

The Employment Equality (Age) Regulations 2006 which came into force on 1 October 2006 make direct and indirect discrimination on the grounds of age unlawful unless objectively justified.

Other key points in relation to this legislation are as follows:

• There is a default retirement age of 65.
• There is a right to request working beyond retirement age.
• There is no upper age limit for unfair dismissal.
• There are no statutory redundancy age bands.

How will the new legislation work in practice?

Job advertisements need to be carefully scrutinised, for instance, an advert containing a maximum age limit would constitute age discrimination as would one requiring applicants to have 5 GCSEs as opposed to O Levels or CSEs which automatically puts the applicant into a particular age bracket. Likewise, an advert asking for five years experience could discriminate against younger candidates.

How can employers objectively justify making age based decisions?

Age discrimination can only be justified if it pursues a legitimate aim and is a proportionate means of achieving that aim.

Reasons for objectively justifying aged-based decisions could include the particular training requirements of a job; health and safety; encouraging and rewarding loyalty; facilitation of employment planning; the need for a reasonable period of employment before retirement and the labour market.

What changes do employers need to make?

Discrimination can occur before, during and at the end of employment and therefore employers need to be aware of the legislation at every stage.

Before Employment

• Make sure that all job adverts are age neutral and avoid language associated with age such as "mature", "young" and "fresh".
• Employers also need to check where they recruit their employees from e.g. graduate training days. Research has shown that in 2003 only 13% of undergraduates were over the age of 40.
• Internet advertising could again be seen to be favouring a younger audience.
• Check the wording of standard application forms. A request for a photograph and date of birth could be discriminatory as candidates could claim that they were rejected on the basis of their age or perceived age.
• In order to avoid accusations of discrimination, employers should advertise across different media to attract different age groups, ensure that there is no reference to age within the advert unless it can be objectively justified and use application forms (without a request for date of birth or photographs) rather than CVs.

At the interview stage it is advisable to have an interview panel of mixed ages. The interviewers should also be trained in age discrimination law in order to be aware of the following:

• Avoid written comments during interview such as “too old” “overqualified” “too young”. These are all discriminatory and the applicant could request a copy of these notes under the Data Protection Act.
• Telephone interviews protect the employer more as the age of the candidate will be unknown.
• Not require older employees to complete a medical questionnaire or examination.

During Employment

During the period of employment discrimination could arise in the following ways:

• Older employees receiving higher salaries and holidays than younger employees. This could be due to their length of service with the company but could be seen to be indirectly discriminatory unless justified.
• Older employees are often passed over for promotion as they are deemed to be close to retirement age.
• Training sessions and team building days are often targeted towards younger employees for example - paint balling.
• Employees could claim that they have been harassed on the grounds of their age. “old bag” and “young foolish girl” are both potentials for harassment claims.

At the end of employment

Employers cannot dismiss someone who is 65 or above without following the statutory procedures.

The Regulations provide for a default retirement age of 65. Employers will still be able to set a lower retirement age than this but would have to be able to objectively justify.  It is likely that the default retirement age will be increased this year in light of the recent comments made in the Heyday case.

If retirement is not by mutual consent then the employer will have to follow the “Duty to Consider” procedure which involves informing the employee of their right to request working beyond his normal retirement date.  The employer must inform the employee not more than one year and not less than six months before the intended date of retirement. A failure to inform the employee of his right could render the dismissal as unfair.

In summary

• Review your job specifications, advertisements and application forms to ensure no direct or indirect reference to age unless it can be justified.
• Review your equal opportunities policy
• Ensure your retirement policy deals with the issue of working beyond retirement age.
• Train your senior staff in relation to the legislation.

For more information contact Suki Harrar

Wright Hassall are happy to provide lectures, training and advice in relation to this new area of law.