Overview
It is unlawful for an employer to discriminate on grounds of age when recruiting, promoting, transferring, training or providing any other benefit to employees, eg in terms and conditions of employment, and in relation to the whole of the retirement process, unless:
the treatment falls within one of the exemptions or exceptions in the law; or
it can be objectively justified, ie the employer can show it is a ‘proportionate means of achieving a legitimate aim’.
It is also unlawful to:
harass an employee intentionally or unintentionally (by subjecting them to behaviour which violates their dignity, or creates an intimidating, hostile, degrading, humiliating or offensive environment), or
victimise them (by treating them adversely because they have complained or assisted someone else in complaining about their treatment on grounds of age); or
force an employee to retire at any age short of the ‘default retirement age’ of 65, unless an earlier retirement age can be justified.
You must take reasonable steps to prevent your employees from discriminating on grounds of age, so consider your policies and procedures to ensure employees are deterred from making offensive or hurtful cracks about youth or age. Train your workforce early, to introduce them to the idea that age discrimination (including harassment) is unacceptable. Particularly, make sure staff that interview potential employees, or appraise, train or recommend for promotion, are trained to avoid age-related issues.
Direct and indirect discrimination
Discrimination can either be direct – ie you discriminate against a particular employee – or it can be indirect, ie when a practice, selection criterion or provision you apply puts employees in a particular age group at a disadvantage compared to other age groups.
Recruiting
You will not be discriminatory if you recruit on the basis of objective skills, and competencies such as confidence, drive, the ability to remain cool, leadership skills, communication skills and the ability to get on with people.
There should be no references to age and date of birth in your job advertisements, application forms and interview criteria unless you can justify them. If you ask for a certain level of experience, make sure it’s really necessary, and not just because you are assuming an older person will be better at the job.
So if you really need an experienced van driver, your advert can say that, but you shouldn’t ask for a van driver with a 10-year, accident-free record. The first leaves it open to youngsters to apply, while the second effectively rules out anyone short of his or her late 20s, and could be difficult to ‘objectively justify’.
Avoid phrases like ‘young school-leaver’, ‘mature’ or ‘benefits according to age and experience’. If you require qualifications make sure they are not age-specific, eg ask for a good working knowledge of French rather than French GCSE, as candidates may have left school before GCSEs were introduced in 1986.
Don’t ask for physical fitness tests unless you need them, and then only to the level that you need.
Good HR practice requires that all interviewees are assessed against identical criteria and a record made on standard interview forms. Those forms should not contain age-related criteria.
Training
Training should be available to all, irrespective of age. The type of training may be varied according to the employee’s background and experience (eg someone unused to classroom learning and someone who has known nothing else may learn better in different training environments) but not their age.
Promotion
When deciding whom to promote, you must simply ignore age (unless an exemption or exception applies, or it can be ‘objectively justified’). For example, the fact that a new manager will be younger than his employees is not a reason to reject him – if he has the best characteristics and skills needed for the job, failing to promote him because he is young will be discriminatory. The converse is equally true. If other employees don’t like it, they are being discriminatory as well.
Succession planning can be an acceptable reason for treating people differently on grounds of age, but whether it actually is acceptable (‘objectively justified’) depends entirely on the facts of the case.
Retirement
Employers must not set a retirement age of less than 65 unless they can objectively justify it.
For example, if the job requires a very high level of physical fitness it may be possible to ‘objectively justify’ earlier retirement. But if your retirement date now is, say, 60, you may have a hard job maintaining that 60-year olds are fit enough but 65-year olds aren’t.
Whatever your retirement age, employers have to notify each employee of their retirement date, between six months and one year ahead, and of their right to ask to work longer. Specific notifications cannot be replaced by a general provision in an employees’ contract or in policies and/or employment manuals.
If employees exercise the right to ask to work longer, employers must ‘carefully consider’ the request. They do not have to provide reasons if they decide to turn the request down, but the employee has a right of appeal.
Employers will have a hard time arguing they have ‘carefully considered’ a request if they refuse all requests. Instead, they should consider the benefit to the business of that person carrying on, taking into account, eg how much longer the employee intends to work for, or whether a change in role might be appropriate, such as going part-time or taking a lesser job. Employers must not take into account matters that could give grounds for unfair dismissal claims, such as performance, health, conduct or attendance, or for a redundancy claim.
If you agree to the request, nothing more need be done. If you do not agree, or wish to consider the matter further, you must:
hold a meeting with the employee to discuss it;
inform the employee of your decision as soon as reasonably practicable (during which time he continues to be employed); and (if your decision is no)
allow the employee time to appeal, which he must do as soon as reasonably practicable.
Provided you follow these procedures, you do not need to follow the statutory disciplinary procedure before dismissing the employee.
If you miss the six months’ deadline, the employee can ask for compensation of up to eight weeks’ pay (subject to a statutory cap of £330 per week). If you neglect to inform him of the right to request to work longer, it automatically becomes a matter of unfair dismissal.
Having said all that, what happens if your retirement age is 65 (or older) is currently a matter of some speculation, because an organisation called Heyday, backed by Age Concern, has challenged the legality of the ‘default retirement age’ in the courts, and the case has been referred to the European Court of Justice. A definitive decision is unlikely before 2009, though in the meantime the Advocate General (whose opinion is generally, but not invariably, followed by the full court) has come down in favour of the default in a similar Spanish case (‘Palacios’).
The situation causes potential problems because, where employers want a retirement at 65, and the employee in question does not, the latter is being encouraged to claim unfair dismissal and/or age discrimination within the time limit for making such claims, and then apply to have the case ‘stayed’ (put on hold) until the ‘Heyday’ ruling is made. If you find yourself faced with a similar situation, take legal advice.
Exemptions and exceptions
To avoid a claim of age discrimination for any age-related differences in your organisation, you must be able to show:
- you are acting within the general exemption;
- you are acting within one of the specific exemptions;
- you are complying with other legislation containing age restrictions;
- you are undertaking ‘positive action’; or
- you have a ‘genuine occupational requirement’ for somebody of a particular age;
- Your difference in treatment on grounds of age is ‘objectively justified’.
The general exemption
There is a general exemption where:
- the award of, or increase in, a benefit is meant to reflect a higher level of experience, reward loyalty, or increase motivation; AND
- the employer expects business benefits from the above; AND
- the criterion (whatever it is) is applied similarly to all staff in a similar situation.
For example, if you believe that the business will in future benefit from the experience and loyalty of your longer-serving employees, it may be lawful to allow them the pick of the holiday dates. If, however, you allow Robert and Claudine the pick of the holiday dates, but insist that Jack and Mary, though equally long-serving, must vie with everyone else on a first-come, first-served basis, you might well fall foul of the legislation.
Another example might be appointment of a very senior employee – if it takes a year for a new managing director to find their feet, and you want five year’s service from them, it might be objectively justified to refuse to interview or promote anyone who is 60 or over. But each case is unique, and the test of objective justification is a stiff one, and you have to be able to produce hard evidence to back your assertions.
The specific exemptions
One specific exemption relates to any length-of-service requirement of five years or less. Where eligibility for a benefit depends on up to five years’ service, there is no problem in offering it. For example, requiring one year’s service before employees are entitled to a season ticket loan is allowed.
Another specific exemption relates to length-of-service requirements that mirror a similar requirement in a statutory benefit. For example, if your contractual redundancy scheme offers more generous payments to those with longer service, as the statutory scheme does, and is consistently applied, this is probably OK – although this is a question of degree and advice should always be taken.
Other legislation
The age-related element in the calculation of statutory redundancy pay remains, although:
- the lower age limit of 18 for the purposes of calculating whether an employee has the requisite two years’ service that entitles him to statutory redundancy pay is abolished; and
- the upper limit of 65, beyond which he is not entitled to statutory redundancy pay, is abolished.
The tapering of statutory redundancy pay for those made redundant between 64 and 65 has been abolished.
Employees who are over the age of 65 may now bring an unfair dismissal claim – although a dismissal on grounds that an employee has genuinely reached retirement age will be fair.
The national minimum wage rules are unaffected, even though they differentiate between employees on grounds of age.
Positive action
Positive action can be taken if it prevents, or compensates for, disadvantages linked to age, such as under-representation of certain age groups in particular jobs, or a certain age group in a particular job is harassed.
This means jobs can be advertised specifically to under-represented age groups, but only where
the age groups concerned suffer from disadvantages because of their age; and
you ‘reasonably expect’ your action, in encouraging them to take advantage of employment opportunities, to prevent or compensate for these disadvantages.
You cannot use positive action as an excuse for recruiting from only one age group, or to exclude applications from another age group. To do that without falling foul of the law, you have to be able to justify your actions through the general test of objective justification.
There is no need to establish quotas for particular age groups. It is, however, good practice for employers to establish how many employees they have in each age group, and how each group is/has been treated in relation to, eg recruitment, promotion and training. They can then check whether there is/has been bias against a particular age group that needs to be eradicated.
A genuine occupational requirement
If the job requires the employee to be a certain age of necessity, then it is a genuine occupational requirement. For example, if you need an actor to play the part of an 18-year old, they will usually have to be young.
Objective justification
To prove ‘objective justification’, for either direct or indirect discrimination on grounds of age, you must be able to show that your practices, selection criteria or provisions are:
- a ‘proportionate’ means
- of achieving a ‘legitimate aim’.
To prove that what you are doing is proportionate, you must be able to show:
- that it will actually contribute towards achievement of your ‘legitimate aim’;
- that the benefits you expect it to produce are sufficient to justify the amount of discrimination you are prepared to practise; and
- that you are practising no more discrimination than is strictly necessary.
‘Objective justification’ will be hard to establish in individual cases. So if you have age-related practices that fall outside the general and specific exemptions, don’t rely on being able to prove that they are justified – or not without consulting your lawyers first.
Broadly speaking, you will have a ‘legitimate aim’ which may justify you in treating people differently on grounds of age, where you have a real need to do so, and there is no reasonable alternative: for example (and they are only examples):
- business needs (it is not sufficient to argue that it is cheaper to discriminate than not to discriminate);
- efficiency;
- health, welfare and safety;
- facilitation of employment planning (eg so employers can plan staff structure, make provision for wages and pensions, and plan recruitment, training and staff development, and employees can plan their careers and for retirement);
- particular training requirements (eg the need for a long training period for highly skilled jobs);
- encouraging and rewarding loyalty;
- the need for a reasonable period of employment before retirement;
- a wish to recruit or retain older people.
You will need to be able to prove that:
- you have such a need;
- the form of age discrimination that you are practising is necessary to resolve it;
- the benefits of resolving it outweigh the disadvantages of practising age discrimination; and
- you cannot achieve such resolution from any lesser form of discrimination.
Don’t attempt this without taking legal advice: it is nowhere near as innocuous as it looks.
