The Employment Equality (Age) Regulations came into force on 1 October 2006. This means that it's now illegal for an employer to discriminate against staff, trainees or job applicants on the basis of their age. This protects both younger and older employees. The Regulations apply to all employment and includes contract workers, temporary workers and casual workers. The Regulations apply to those in employment, those seeking employment and even those whose employment has been terminated. A worker is protected from the first day of service or before if they are discriminated against in their application for employment.
1. Direct discrimination
Direct discrimination occurs where a person is treated less favourably on the grounds of age.
Under these new laws it's not possible for an employer to state or imply an ideal age of applicant in a job advert unless there is an objective reason. If a certain level of experience is necessary for the job, employers must be able to show why. Employers shouldn't include an age range in job advertisements or job descriptions. Phrases such as 'young' or 'dynamic' should also be avoided. If it's necessary to specify a level of experience, it's wiser to say 'more than three years' instead of 'three to five years'. Therefore, it's important for employers to concentrate on the skills required for the position, rather than the number of years experience. An employer is allowed to take some restricted steps to advertise to particular age groups if the employer believes that the age group is underrepresented in its workforce.
An employer can justify the direct age discrimination by showing that the treatment was necessary to achieve a 'legitimate aim'. This legitimate aim must correspond to a real need on the part of the organisation and it must be 'proportionate'. However, if there's an alternative way of achieving the same end which is less discriminatory, the treatment may still be unlawful even if an employer can show a legitimate aim.
2. Indirect discrimination
Indirect discrimination occurs where an employer's practices or policies disadvantage certain age groups.
An employer must now be careful about any pay or benefits that are based on length of service (e.g. holiday entitlement that increases with each year worked or automatic pay increases within a pay band each year). This indirectly discriminates against younger workers. However, it's lawful for employers to offer service related benefits based on up to five years' service.
At present, some employers only offer benefits for those under a certain age because of the increased cost of providing these benefits for older employees (e.g. medical insurance). This is no longer acceptable and if insurance cover is offered, it must be provided to all employees.
Different wage rates for younger people, reflecting the National Minimum Wage, are exempted from the Regulations.
3. Harassment
The Regulations define harassment as occurring where, on the grounds of age, a person subjects another to unwanted conduct which has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Stereotypical comments about older people or younger people may be regarded as humiliating or as creating an offensive environment. An employer will be responsible for the discriminatory acts of its staff. However, an employer will have a defence if he can show that he took all reasonable steps to prevent the harassment (e.g. training staff about inappropriate jokes or behaviour).
4. Victimisation
This occurs where an employee has brought age discrimination proceedings, alleged age discrimination or given evidence against their employer and as a result they are treated less favourably.
5. Redundancy/unfair dismissal
The upper age limits for redundancy and unfair dismissal have been removed. At present, redundancy settlements offer extra rewards for extended service. It's thought that this may discriminate against younger workers.
6. Retirement
The retirement age for both men and women is set at 65. It's due for review in 2011. Employers cannot ask their staff to retire before the age of 65 unless there are exceptional reasons. All employees, even those over 65, must be notified at least six months before they are asked to retire. They may request to continue working and are entitled to receive a reason if this request is denied. If the employer doesn't follow the correct procedure, then the dismissal will be automatically unfair. There are complicated rules to deal with people retiring between 1 October 2006 and 1 April 2007.
Employers are allowed to refuse employment to someone who is over, or within, six months of the employer's normal retirement age. However, if the employer does offer a job to someone over normal retirement age, it must be offered on the same terms and conditions as it would be offered to a younger worker.
7. Pensions
The provisions relating to pensions will not come into force until 1 December 2006.
1 November 2006
