ALARM SOUTH EAST Employment Seminar AGE DISCRIMINATION DAVID KNAPP JAMES MAJOR

Discrimination Legislation  Unlimited damages  Committed and competent Claimant lawyers  A good thing?

Current Position  No age discrimination legislation  But Employment Equality (Age) Regulations 2006 comes into force from 1 October 2006  Age discrimination will be unlawful

Purpose  Government’s stated aims: –to ensure nobody is denied a job or harassed because of their age –workers of all ages have equal chance of training and promotion –to create a more diverse workforce by helping employers attract, motivate and retain staff

Scope of Protection  Direct discrimination  Indirect discrimination  Victimisation  Harassment  Direct and indirect discrimination can be justified if employer can show it was a proportionate means of achieving a legitimate aim

Discrimination at the start of Employment  It is unlawful for an employer to discriminate on the grounds of age: –in the arrangements for determining to whom offers of employment should be made –by refusing to offer employment –in the terms on which employment is offered  The first two provisions do not apply to a person who is aged 65 or over

Advertising  Unlike other forms of discrimination, a discriminatory advert in itself is not unlawful  However, a discriminatory advert will be good evidence to show that the refusal of an application was unlawful age discrimination  Therefore: –ensure advertisement does not contain phrases which could be related to age –if there is a genuine occupational requirement, the advert should make that clear

Sifting, Selection and Interviews  Review selection criteria - beware of minimum and maximum ages or other phrases which could be related to age  Age will be discernible from applications  Sifters should be given Equal Opportunities Policy and should refer to the selection criteria  At interview, ensure questioning is not discriminatory and that careful notes are kept, including a note of any relevant genuine occupational requirement

Employment Agencies  Employer will be responsible for the discriminatory acts of the agency  Unlawful for an agency to discriminate against any person on the grounds of age  Clear instructions to agencies as to job and selection criteria

Discrimination during Employment  Service-related pay and benefits exception  Enhanced redundancy payments  Employment related insurance  Pensions  Positive action exception  Vocational training

Service-related Pay and Benefits Exception (1)  There is an exception for service-related pay and benefits where: –the length of service criterion is less than five years and –the same criterion applies to all other workers doing similar work  E.g. a requirement that employees complete two years of service before they are entitled to private health insurance will not be discriminatory

Service-related Pay and Benefits Exception (2)  There is also a general exception for service-related pay and benefits linked to a period of service in excess of five years providing: –the benefit is given with the aim of rewarding loyalty, encouraging motivation or recognising experience and –the aim pursued will bring business benefits  E.g. increased holiday entitlement after seven years of service will not be discriminatory providing the employer can show it rewards loyalty and benefits the business

Vocational Training  Employers and providers of vocational training cannot discriminate on grounds of age  Access to training should be available to all  Exclusion for schools and sixth form colleges

Discrimination on Termination  Default retirement age of 65 years. Employers will have to justify a normal retirement age below 65 years  If a retirement is “planned” there is a presumption that the employer is correct in saying that the reason for a dismissal is retirement  A retirement will be planned if: –it takes effect at the national default retirement age of 65 –it takes effect at the employer’s normal retirement age (retirement ages below 65 will have to be objectively justified) –the employer has followed the duty to consider procedure

Duty to Consider: Notification  Employer must give at least 6 months but no more than 12 months notice in writing of: –the intended retirement date –the right to request to work beyond the intended retirement date and –the employer’s duty to consider the request  If the employer misses the 6 month deadline, it has a continuing obligation to notify the employee up to 14 days prior to the intended date of retirement;  Penalty for failure to notify – 8 weeks’ pay

Duty to Consider: Request to Continue Working  Employee must make their request to continue working between 6 months and 3 months prior to the intended retirement date  If the employer misses the 6 month notification deadline, the employee can make their request at any time up to the intended retirement date

Duty to Consider: Consideration of Request  Employer must meet the employee to discuss the request within a reasonable period  Employee has the right to be accompanied  Employer must then give the employee its decision as soon as reasonably practicable after the meeting but does not have to give a reason for the decision  If the intended retirement date passes before the employee is notified of the decision, employment continues until the decision is notified to the employee

Duty to Consider: Appeal  Employee has a right of appeal  Employer must hold an appeal meeting and notify the employee of the outcome within a reasonable period  Employment does not continue beyond the intended retirement date pending the outcome of the appeal

Retirement: Transitional Provisions (1)  Before 1 st October 2006: –give notice of at least 4 weeks of intended date of retirement –on 1 st October write to employee informing them of right to request working longer –employee can then make request up to 4 weeks after the date of termination –employer must follow duty to consider procedure

Retirement: Transitional Provisions (2)  After 1 st October 2006: –give notice of the intended date of retirement of the longer of contractual notice and statutory minimum notice –inform employee of right to request working longer at same time –employee can then make request where practicable up to 4 weeks before the intended date of retirement, otherwise as soon as reasonably practicable but in any event within 4 weeks after the date of termination –employer must follow duty to consider procedure