Age concern

As an employer, you need to understand the new anti-age discrimination legislation, as failure to comply could mean unlimited compensation.

What are the 2006 Age Regulations?

The Employment Equality (Age) Regulations 2006 came into force on 1 October and make discrimination and harassment on grounds of age illegal.

Five acts are now unlawful – direct discrimination; indirect discrimination; harassment; instructions to discriminate and victimisation.

When might I be directly discriminating?

It is illegal not to promote an otherwise capable employee solely on the grounds that you think he or she is “too old” or “past it”. This is unlawful discrimination even if you are mistaken as to the actual age of the employee, since both actual and perceived age are covered by the Regulations.

When might I be indirectly discriminating?

If you have a policy that requires all employees to have held a clean driving licence for five years, for example, this is unlawful indirect discrimination. While such a policy would apply to all employees equally, younger employees could be indirectly disadvantaged as a result.

Can I ever discriminate on grounds of age?

You can seek to defend a direct or indirect discrimination claim if you can establish that there was “objective justification”. To be objectively justified, the act of discrimination must be a proportionate means of achieving a legitimate aim.

Can I still award benefits based on long term service?

Yes. There’s an exemption in relation to the practice of requiring a certain length of service before a particular benefit is awarded. Any benefit awarded subject to five years’ service or less is lawful.

Where a greater length of service is used, this is lawful if you can show that it is to reflect levels of experience, to reward loyalty or to motivate. You may be able to rely on some other “objective justification”.

What do I need to do in relation to retirement?

The Age Regulations introduce a default retirement age of 65 which allows for the “fair” retirement of employees of 65 or over. To be classed as a “fair” retirement, you must inform your employee in writing of their intended retirement date and of their right to request to continue working beyond that date, between six and 12 months in advance. You must meet with your employee to consider the request and inform them of your decision in writing following the meeting. Failure to comply means you will be liable for up to eight weeks’ pay, and if you still fail to do this in the last two weeks before retirement, it is unfair dismissal.

Is it only existing employees who are protected under the Age Regulations?

No. The Age Regulations also apply to job applicants and your ex-employees.

How are existing employees protected?

Existing employees are protected in relation to the terms on which they are employed, the opportunities for promotion, transfer or training, the availability of benefits and grounds for dismissal. In addition, existing employees are protected against age-related harassment in the work place.

How are job applicants protected?

Employers must avoid particular job specifications such as “dynamic professional required – ideal first job”. During interview, focus on the applicant’s competencies and not what you may expect them to have achieved by reference to their age.

What should I watch out for?

In relation to younger people, potential age discrimination might include:

• talking down to younger people in a patronising fashion;
• making junior staff do all the menial tasks.
• With older people, you should avoid:
• advertising for school-leavers or suggesting that a role would be an “ideal first job”;
• considering applicants too experienced or over-qualified for a role because of their age.

If a tribunal upholds a complaint against you, it can make a declaration that you have violated the individual’s rights and recommend you take steps to prevent or reduce the adverse effects of your discrimination.

Am I liable if one of my employees breaches the Age Regulations?

Yes. Any act of age discrimination carried out by someone employed by you will be treated as having been committed by you as well as by the individual in question. Deliberately making a misleading statement to employees to encourage them to breach the Age Regulations is a criminal offence.

Jonathan Exten-Wright is a partner and Paul Matthews is a trainee solicitor in the employment department of international law firm DLA Piper UK LLP.