10 for 1/10: Practical steps to avoiding age discrimination

Unless you have been living under a rock for the past few months you cannot have escaped the fact that the Employment Equality (Age) Regulations 2006 are coming into force on 1st October this year. Information about the new laws is everywhere but has been mostly long on detailed legal analysis and short on practical advice. It will require employers to take active steps straight away. Employers who act now can also take advantage of key concessions which apply if you take steps before the laws are introduced.

Here are ten things to do NOW in readiness for 1 October. (This article should not be misconstrued as Top Tips in any shape or form… ahem!)

1. Check retirement ages. Look at your business’s normal retirement age. If it’s not at least 65 then you should raise it to this level unless you have a compelling and justifiable reason not to do.
2. Consider pensionable age. Do check with your company pension provider whether raising retirement age impacts on pension rights. In some pensions, increasing retirement age also increases the age at which employees can take an unreduced pension. If this is true of your company pension then you will still need to offer employees the right to move to a retirement age of 65, but will need to take careful steps before  insisting on the change without employee consent.
3. Identify NOW employees due to retire before 1 October 2007. The new rules require you to plan ahead for retiring employees since advance notifications will be required (see below) so draw up a list of employees with their scheduled retirement dates and work backwards to diarise key notification dates. Since you’re allowed to give the statutory notices up to 12 months ahead, you can keep things simple by making retirement notifications an annual event (unless you have notice periods of more than a year, in which case you’ll need to start the process even earlier).
4. Exploit the Transitional Provisions NOW. If you act before 1 October 2006, your obligations as an employer are slightly relaxed for employees due to retire between 1 October 2006 and 1 April 2007.  By giving notice of the planned retirement date and right to request to work beyond normal retirement age before 1 October 2006, you will need to give only four weeks’ notice, even if the normal notice period is longer than that. If you wait until 1 October 2006, then the full notice period must be given.
5. Get ready to notify the “right to request”.  Employees due to retire on or after 1 April 2007 are subject to the full weight of the regulations so you will need to give at least six months’ advance notice of the right to request. You will also need to comply with any contractual notice period or statutory notice period, whichever is longer. Working backwards, you’ll see that this could mean having to give notice the day that the new regulations come into effect on 1 October this year (or even earlier, if notice periods dictate), so don’t leave it until then to start thinking about it. Get your forms ready now.
6. Check recruitment requirements and processes. It’s obvious that, after 1 October, requests for candidates of a particular age will be unlawful. But employers should also make sure that they can justify a request for a particular length of experience (does a candidate with five years’ experience really offer more than one with three? Isn’t it more important to ask what they’ve actually done?). Be careful of words like “mature”, “dynamic” “seasoned” and so on.
7. Review recruitment forms. Don’t forget to take requests for date of birth off recruitment forms. Similarly, remove any requirement for dates of qualifications or of particular jobs, which will indicate age, to be provided unless you can objectively justify why you need it.
8. Look at length of service benefits. Since it’s less likely that younger employees will have accrued long periods of service, benefits which increase with length of service are indirectly age discriminatory. Many employer have salary scales and benefits (particularly holiday and sick leave entitlement) which increase with length of service. Accruals for up to five years at a particular level are exempted and can continue, but anything over that will be unlawful unless objectively justified.
9. Consider promotion and pay increase systems. Some professions (including the legal profession!) have tended to adopt quite formulaic systems of career progression, whereby a salary increment is provided for each year of post-qualification experience and eligibility for promotion arises at set points. These systems will be unlawful unless they can be objectively justified. Skills and appraisal based promotion and pay rises (even where an element of experience is required) will be easier to defend.
10. Educate your workforce. Finally, remember that an equal opportunities workplace requires much more than technical compliance with points like those above. Society as it currently exists is undeniably ageist and ageism remains much more socially acceptable than the other “isms”. But from now on, employers will need their staff to leave those attitudes at the office door and that, in most workplaces, will require a fundamental shift in cultures and behaviour.  This is unlikely to happen by itself: employers will need to train staff on the changes required of them. As a shameless plug, Fox Williams can help!