In October 2006, legislation will be introduced which outlaws age discrimination in employment and vocational training. The impact of the age discrimination regulations is likely to far reaching, particularly as they will affect all ages, young and old.

Draft regulations have been proposed by the Government and consultation closed on 17 October 2005. The Government has indicated that it is unlikely that there will be major changes and has already made it clear that the default retirement age will be reviewed in 2011.

Under the draft regulations, individuals will be given the right not to be discriminated against because of their age, and new responsibilities will lie with all employers and providers of vocational training. The regulations will apply to all employees (including those on fixed terms contracts) workers, job applicants and those seeking access to vocational training.

Discrimination

The definitions of direct and indirect discrimination within the draft regulations will be the same as those detailed in the sexual orientation and religion and belief discrimination legislation. This is because one of the Government’s aims is to streamline age discrimination legislation in line with all other discrimination law and to be consistent with the European directive.

However, unusually (and in contrast to all other discrimination legislation in force in the UK) under the proposed regulations, direct discrimination can be justified if the treatment is a proportionate means of achieving a legitimate aim. An example given in the regulations is if there is a need for a reasonable period of time in post before somebody retires and it could therefore be legitimate not to give a role to someone nearing retirement age if this could cause too much disruption in the future.

Provision, criterion and practice is a more wide ranging test than the previous definition in discrimination law of “requirement or condition”. The regulations could therefore potentially catch an informal practice, even if it is not formally recognised in any handbook or company policy.

The regulations also cover victimisation where an individual is treated less favourably as a result of having raised a complaint of age discrimination. There is a separate claim for harassment on the grounds of age which is defined under the regulations as being where one person subjects another person to harassment on the grounds of age which is unwanted and has the purpose or effect of violating that other person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Harassment is always unlawful and cannot be justified. An example of a hostile environment could be ageist jokes put up on a pin board which a particular employee finds offensive.

Positive Action?

An interesting new issue emerges in the regulations as provision is made for “Positive Action”, where anything done in connection with giving people of particular age access to vocational training or encouraging people of a particular age to use employment opportunities will be lawful if it is reasonable to take this action to compensate for disadvantages suffered by such persons. An example of this would be where an employer places a job advert only in a magazine for young people because this particular age group is under represented in the business. This would have the effect of encouraging applications from younger age groups but may be indirect discrimination because older applicants will be unlikely to see the magazine’s advert. This could be lawful if it reasonably appears to the employer that this helps to compensate for the disadvantage suffered by younger people.

Service Rated Pay and Benefits

Length of service is often used as a criterion for pay and for non-pay benefits such as staff discounts and extra holiday entitlement. This could amount to indirect discrimination under the regulations. However, the Government has recognised that there may be certain circumstances in which it would be appropriate for certain benefits to continue.

A length of service requirement of five years’ or less is exempted and will be able to continue as will length of service requirements which mirror a similar requirement in a statutory benefit. If an employer wants to rely on a general provision for allowing a benefit attributed to length of service longer than 5 years, this is allowed in certain circumstances: to reward the employee, to reward loyalty, to encourage motivation or to recognise the experience of the employee. The employer must also conclude that there will be an overall business benefit resulting from the higher level of experience of staff or from rewarding staff loyalty.

Retirement Age

This issue has caused the most debate in the consultation on the regulations. Under the regulations as they are currently drafted, there will be a default retirement age of 65. This means it would not be age discrimination if a decision is made to retire employees at or above the age of 65 where the reason is genuinely for retirement.

If a decision is taken to retire employees on a compulsory basis, employees will have to follow a new procedure called “the duty to consider” procedure. This will allow employees to request working beyond a compulsory retirement age and if an employee makes such a request, an employer will have to consider it seriously.

If a retirement age is below 65 this will generally not be lawful. Although the Government’s intention is to encourage employers to permit workers to continue beyond their retirement date, the opposite effect may happen. This is because the easiest and most low risk method is for employers to retire their employees at 65, having followed the correct procedure so that any dismissal will be presumed to be a fair one on the grounds of retirement. If a decision is taken after 65, an individual may argue that retirement is not a genuine reason.

What will the future hold?

Prior to the new regulations come into force in October 2006, employers should be looking at their recruitment procedures, their pay and benefit regimes and their handbook policies. Further, more detailed information can be found on the DTI website at www.dti.gov.uk/er/equality/age/htm.

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