What should employers have done by now to prepare for Age Discrimination?

The charity Age Concern has produced statistics showing that there has been a 200% rise in the number of older employees complaining that they have been sacked without warning in recent weeks.  It appears that some employers have had a knee jerk reaction prior to the Employment Equality (Age) Regulations 2006 coming into force.  So what should you have done by now, assuming you decided not to take the route of sacking all your more “mature” staff before 1st October 2006?!!

• All your equality policies should now refer to age discrimination as well as all the other previously unlawful discriminatory grounds.  Any harassment policy should also refer to age as being a prohibited ground.
• You should have considered the “service related benefits” which you offer to your staff.  Any service related benefit will be lawful up to a period of five years at a specific job level, but if they link to a period of over five years, employers will need to show that they reasonably believe their service-based benefits fulfil a business need (eg encouraging loyalty or motivation, rewarding experience).  Therefore, you should have in place in advance business reasons as to why a length of service benefit needs to exceed 5 years.
• You should have looked at your business’s normal retirement age.  The government has set the official default retirement age at 65.  Therefore if any of your employees have a lower retirement age than 65, this would be unlawful and you should have raised the retirement age to 65 for all your employees by 1st October 2006 unless you have a compelling and justifiable reason not to do so. 
• You should have identified employees, if any, who are coming up to retirement within 12 months of the Age Discrimination Regulations coming into force.  Check the (complex) transitional provisions for employees retiring between now and 1st April 2007. For employees due to retire from 1st April 2007 onwards, the full provisions of the Age Discrimination legislation apply and you need to give between six  and 12 months’ notice of the intended retirement and of their right to work beyond that date.  This means, in practice, for any employees who are due to retire soon after 1st April 2007, you must give them notice now.
• You should have updated your handbooks to include the right to request procedure.  As long as employers follow the correct process, it will be possible for you to refuse to allow an individual to work beyond the age of 65 without even giving a reason.  It will be important that your handbooks have a policy that covers the right to request to work beyond 65, in case any employees are approaching that date in the near future.
• You can have held off finalising your pension schemes.  Rules outlawing ageism in pension schemes will now come into force on 1st December 2006.  The government has said that it wanted to give employers more time to digest the changes before they have to apply them to their pension schemes.  Therefore, the delay will allow for more consultation but it would be sensible to consider your pension schemes in advance of 1st December 2006. 
• You should have checked your recruitment processes are compliant with age discrimination legislation.  After 1 October 2006, requests for candidates of a particular age will be unlawful. You should also ensure that your application forms do not ask for any unnecessary information about a candidate’s age directly to avoid discriminatory decisions or inferences of discrimination.  Interviewers should be trained not to ask “age related” questions or make ageist assumptions, but to focus on experience/skills related criteria instead.