From 1 October 2006, employers face a major departure from current employment practice.  This is the date on which the Age Discrimination Regulations allowing employees to claim discrimination on the grounds of their age will come into force.  The impact is likely to be far reaching.  Recruitment practices, retirement policies, pension schemes, remuneration and benefit structures could all be affected.

Who do the Regulations apply to?

The Regulations will apply to all workers (not just employees, but for example also the self-employed, contract workers, etc) as well as access to vocational training.  They also apply to job applicants or applicants for vocational training; and where the relationship has ended – for example in the giving of references.

What do the Regulations say?

The Regulations provide that it will be unlawful to treat people differently on the grounds of their age – whether that is because they are too old or too young. 

As with the other forms of discrimination legislation in the UK, there will be two grounds of discrimination, direct and indirect.  Direct discrimination will occur when an employer treats B less favourably than C on the grounds of B’s age.  Indirect discrimination will occur when an employer applies a provision, criterion or practice to everyone in its organisation, but in fact this provision puts persons in a certain age group at a particular disadvantage when compared to others.  This could catch a wide range of current practices.  For example, a health and fitness test could be indirectly discriminatory to older employees.

Employers will only be able to justify treating people differently on the grounds of their age if they can objectively justify this treatment, that is if it pursues a legitimate aim, and it is an appropriate and necessary (or proportionate) means of achieving that aim. There will also be protection against victimisation and harassment.

The Regulations contain a number of provisions that allow, in certain circumstances only, the use of length of service as a criterion in pay and non-pay benefits. Any other different treatment on the grounds of age in employment remuneration/benefits will need to be objectively justified.

One of the most significant points in the draft Regulations is that they contain a national default retirement age of 65.  This means that it will not constitute age discrimination if employers retire employees at or above the age of 65.  Lower retirement ages will only be possible if the employer can objectively justify them, which is expected to be difficult.

Why should you comply?

Breach of the Regulations will expose employers to claims of age discrimination in the Employment Tribunal.  As with other forms of discrimination claims, there is no cap on the amount of compensation employees can receive and the award can include compensation for injury to feelings.

Falling foul of the Regulations (for example, failing to properly consider a request to work beyond the normal retirement age) will also leave employers exposed to unfair dismissal claims.

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