The Employment Equality (Age) Regulations 2006 come into effect on 1 October 2006, implementing the Framework Directive 2000/78/EC. For the first time in the UK, discrimination on grounds of age will be unlawful.
A solicitor from Thompsons Employment Rights Unit in London, provides an overview of what they say.
Who and what do the regulations cover?
The regulations cover contract workers, temporary workers, casual staff and even self-employed staff who are personally engaged to do the work, people applying for jobs, as well as those who have left their job.
The regulations apply to trade unions, barristers, the police, professional or trade associations and employment agencies. Unpaid office holders, politicians, unpaid volunteers and members of the army, navy and air force are excluded.
What is direct discrimination?
Direct discrimination occurs when A treats B less favourably than C (who can be real or hypothetical) because of B’s age. The reason for the difference in treatment must be B’s age, or their “apparent age”.
Proving discrimination is difficult, but if a claimant can produce enough evidence for a tribunal to draw inferences from it, then the burden of proof shifts to the employer to show there was an innocent explanation for their action.
But if someone is refused a job because they are 60, how old does their comparator have to be? Given the obvious difficulties in that sort of comparison, tribunals will probably not focus on the precise age of the comparator, but instead on the reason for the treatment.
Can it be justified?
Unlike other equality legislation, direct discrimination on grounds of age can be justified. Employers will have to show that the less favourable treatment was necessary to achieve a “legitimate aim” and was “proportionate”.
Financial cost alone will not amount to a “legitimate aim”, but it is likely that cost can be “put into the balance” alongside other factors.
The European Court of Justice has recently restricted the opportunity for a social policy justification of age discrimination (Mangold -v- Helm (2006, IRLR 143; LELR 110), saying that blanket exclusions would infringe the principle of proportionality.
What is indirect discrimination?
Indirect discrimination occurs when A applies to B a “provision, criterion or practice”, which is applied equally to persons of other age groups but which puts people in B’s age group at a disadvantage, and puts B at a disadvantage.
One example given by the DTI in its 2005 consultation document is that of a business requiring applicants for a courier job to have held a driving licence for five years. According to the DTI “it is likely that a higher proportion of those aged, say, 40 will have fulfilled this requirement than of those aged, say 25”.
As with direct discrimination, indirect discrimination can be justified by employers where the less favourable treatment is a necessary means of achieving a legitimate objective and is proportionate.
What is harassment?
Harassment will occur where, on grounds of B’s age, A subjects B to unwanted conduct which has the effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
What is victimisation?
As with other strands of equality legislation. less favourable treatment of an age-related protected act will amount to victimisation.
What are the exceptions?
There are extensive exceptions to the regulations, which will significantly limit their application, as follows:
• Retirement: employers are allowed to retire their employees at age 65 or above. This is the most controversial exception and it remains to be seen whether it is even consistent with the Framework Directive.
• Genuine Occupational Requirement: this only applies to recruitment, promotion, training and dismissal and not to contractual terms. It will apply very rarely, for instance to actors.
• Pensions: trustees and pension scheme managers can discriminate on the basis of age in relation to minimum and maximum ages for joining; setting ages for entitlements to benefits; fixing early and late retirement ages; using age in actuarial calculations; varying contribution rates according to age; and linking pension levels to pensionable service.
• Redundancy: statutory redundancy payments using age-related criteria are
• still lawful
• Differential wage rates are allowed if they mirror the national minimum wage
• Actions required by statute or regulation are exempted
• Service-related benefits that require less than five years’ service are exempted, but. any above that have to be justified by the employer showing that it “reasonably appeared to him” that the benefit “fulfilled a business need, for example by encouraging loyalty, motivation or rewarding experience”.
What is the “duty to consider” procedure?
Under the regulations, employers are allowed to retire their employees at age 65 or above; or, if they can objectively justify it, at a lower retirement age than normal.
They have to give between one year and six months’ notice of the retirement date to their employees, and must comply with the procedures set down in the regulations to consider any request to stay on, past the intended retirement date.
The employee only has the right to ask to stay on at least three months before the due date, and if the employer does not agree to the request, must invite them to a meeting to discuss it. Employees are not entitled to a reason if their employer refuses their request to continue working, but have the right to appeal the decision. This is known as the “duty to consider” procedure.
If the employer fails to notify the employee up to two weeks before the retirement date, they can claim compensation of up to eight weeks’ pay. After that, normal unfair dismissal compensation rules apply.
Can people over 65 now claim unfair dismissal?
Yes, the Government removed the upper age limit or normal retirement date of 65 for bringing an unfair dismissal (or redundancy payment) claim. Similarly, they removed the lower age limit of 18 for redundancy and the tapering reduction for unfair dismissal compensation and redundancy payments
What happens to retirements before 1 October?
If an employee is given notice before 1 October that they are to be retired during the transitional period, they are either entitled to their contractual notice period, or at least four weeks’ notice if their notice is longer than that.
Employers have to write to their employees on 1 October (or as soon as possible after that), telling them that they have the right to request to work longer. Employees can make the request for up to four weeks after their contract has been terminated.
What are the transitional arrangements after 1 October?
If the employee is given notice after 1 October, the employer must write to the employee notifying them of the intended retirement date, offering them either their contractual or statutory notice period (whichever is longer).
Employers have to write to their employees on 1 October (or as soon as possible after that), telling them that they have the right to request to work longer.
Employees can either make their request four weeks before the intended retirement date or, if that is not practical, as soon as possible after receiving their notification. The request can be made up to four weeks after the termination of their contract.