Employers need to ensure their policies do not discriminate unintentionally on age

Published on Tuesday 11 July 2006 00:31

THE Employment Equality (Age) Regulations 2006, published on 9 March, will introduce a number of changes to existing employment laws aimed at tackling age discrimination in the workplace.

The regulations are being introduced to implement the European Equal Treatment Framework Directive No 2000/78 which, among other things, requires age discrimination legislation to be introduced throughout the EU.

Figures suggest that age discrimination is undoubtedly an issue in the UK - those employees over the age of 55 are twice as likely as to have suffered discrimination on the grounds of age as any other form of discrimination.

The regulations will place a number of new duties on employers. Discrimination - whether direct or indirect - harassment, or victimisation on the grounds of age will all be prohibited.

The impact of the regulation on existing employment practices is likely to be significant. Employers should therefore consider carefully every aspect of their policies and procedures - from recruitment, through the pay structures and benefits they offer, to their policy on retirement.

Many of these policies and procedures will indirectly discriminate on the basis of age, and from 1 October (with certain exceptions) such policies and practices will be unlawful unless justified as a proportionate means of meeting a legitimate aim. Cost implications alone are unlikely to provide such a justification, however.

Employers will have to examine their recruitment policies to ensure they do not discriminate either directly or indirectly on the grounds of age.

Adverts seeking "young and enthusiastic" employees should be scrutinised carefully.

Similarly, requiring a certain number of years' experience for a job might not be justifiable if it could be shown that younger applicants who nevertheless have the necessary skills for the job were likely to be turned down on the basis of the number of years experience they have.

Many employers have benefits and incentives linked to length of service, such as additional days off for employees with longer length of service. Benefits dependent on length of service are exempt from the prohibition provided they are dependent on a maximum of five years service.

Benefits dependent on more than five years service can only be justified if there is a business need - for example, to encourage loyalty among more senior employees.

Thought will nonetheless have to be given in every case to whether there is in fact a justification for restricting benefits to long-serving employees.

Among other things, the regulations will abolish the upper age limit for unfair dismissal and will introduce a new retirement age of 65.

Employers wishing to introduce a lower mandatory retirement age will require an objective justification for doing so - something that will in most cases be very difficult.

Initially, the regulations were drafted in such a way that although age would be a potentially fair reason for dismissing someone at or over the age of 65, an employee who could demonstrate that their employment had been terminated for some other reason - for example, performance, ill-health or redundancy - might be able to claim unfair dismissal.

Employers who allowed their employees to work on past the age of 65 on a case-by-case basis may have been particularly vulnerable to claims.

However, the regulations now provide a procedure which, if followed by the employer, will mean the employee being retired at or above the age of 65 cannot claim unfair dismissal or age discrimination. The only circumstances in which the dismissal could be challenged would be if the employee could demonstrate it was as a result of discrimination on another ground such as sex, race or disability.

As is always the case with the introduction of significant changes in the law, employers would be well advised to review their procedures carefully in advance of 1 October.

Fraser Gillies is a solicitor with Wright Johnston & Mackenzie.