Age Discrimination Checklist

The Employment Equality (Age) Regulations 2006 aim to achieve equal treatment in employment and vocational training to eradicate discrimination on the grounds of age.

Under the Regulations it is unlawful to make employment decisions based on a person’s age. Retirement ages below 65 are unlawful unless they can be objectively justified. The legislation also removed the upper age limits for unfair dismissal rights and statutory redundancy payments.

Here is a check list to help you ensure your business is complying with the law.

Retirement Age
The legislation allows employers to have in place a compulsory retirement age of 65 or older but, if you do, certain statutory procedures must be followed. These include giving employees at least six months’ notice of their intended date of retirement and notifying them that they have the right to request to continue working beyond either the default retirement age or the normal retirement age set by the employer. Employers have a duty to consider such a request. If the employee’s request is granted the employer must remember to put the revised contract terms in writing. It is therefore important to be aware of forthcoming retirements and to have the necessary systems in place for notifying employees and dealing with requests to continue working. You may decide not to have a set retirement age and to offer flexible working arrangements.

We recommend that you keep an age profile of your staff so that you can plan for retirements. This can also be used to inform your recruitment policy, rectifying any obvious age imbalance in the workforce, and to ensure that equal access is given to training and other opportunities.

Heyday, a branch of the charity Age Concern, challenged the Government over the inclusion in the Regulations of a mandatory retirement age, on the grounds that this means that they do not fully implement the EC Equal Treatment Framework Directive 2000/78. Heyday wanted the legislation amended to give workers over 65 the same protection from discrimination as younger workers. The matter was referred to the European Court of Justice (ECJ), which ruled that a national retirement age may be lawful, but such a measure must be justified by legitimate social policy objectives, such as those related to employment policy, the labour market or vocational training. It is for the national courts to decide whether a compulsory retirement age can be justified as a proportionate means of achieving a legitimate aim.

The High Court ruled that the UK Government was able to justify the imposition of the mandatory retirement age at the time it was first introduced in 2006. However, in the Court’s view, the decision might have been different had the legislation been introduced now, as the state of the job market has changed considerably.

Following this ruling, the charity announced that it would be stepping up its fight ‘to get this outdated legislation off the statute book’. However, attempts to amend the Equality Bill, currently before Parliament, to include abolition of the default retirement age have proved unsuccessful.

Recruitment
When advertising for new staff, take care to avoid requirements which disadvantage a particular age group. Avoid specifying the number of years’ experience required by applicants as this can be indirectly discriminatory. In some instances, this will be because potential candidates may have the necessary skills required for the job but be too young to have gained the qualifying length of experience, or it could be because they are of an age where they are likely to have more years’ experience than stipulated in the advertisement. Do not use language that is age-related, such as the words ‘young’ or ‘mature’. Specifying knowledge and skills which are not a genuine requirement of the job could also constitute unlawful discrimination on the grounds of age. Target your advertising so that it reaches a variety of age groups.

Whilst it is not unlawful to request a person’s date of birth on a job application form, this should only be used for monitoring/statistical purposes and to inform your equal opportunities policy. It should not be a consideration during the selection process.

Training
All employees must be given the same opportunities to develop their skills and maximise their employment potential. Employers and other training providers cannot legally set age limits for access to training unless they can show that there is a real need to apply such limits. Be careful not to assume that older members of the workforce are not interested in advancing their careers.

Performance Targets and Appraisals
Targets and performance standards for the same job should be the same, irrespective of the age of the employee. Appraisals must be handled with care. Reports should avoid ageist language such as ‘shows maturity for their age’.

Redundancy
The Regulations remove the lower and upper age limit for statutory redundancy rights. Once an employee has completed the employer’s minimum qualifying period, a worker under 18 or over 65 has the same rights to redundancy payments as other employees. The statutory redundancy scheme is exempt from being discriminatory. Where an enhanced redundancy scheme exists, this can only be exempt from being discriminatory on age grounds if it mirrors the statutory scheme in its application or it can be ‘objectively justified as a proportionate means of achieving a legitimate aim’. In a redundancy situation, selection for redundancy should not be based on age. A selection process where length of service is just one of a number of criteria used to arrive at a fair selection process is likely to enable the employer to defend an age discrimination claim. However, a scheme based solely on ‘last in, first out’ is unlikely to be justifiable.

Pay and Benefits
Promotion procedures and all employee benefits should be kept under review to ensure they are age neutral.

As regards length of service-based pay increases, any benefit based on five years’ service or less is exempt. However, if for example a worker who has six years’ service claims that they are being discriminated against because they are being paid less than someone with more service, the employer must show that the difference in pay fulfils a genuine business need. If an employee considers that their employer’s benefits structure discriminates on grounds of age, he or she can make a complaint to an employment tribunal.

Pensions
Section 11 of the Regulations applies to pension schemes. There are exemptions for many age-based rules in occupational pension schemes with similar exemptions for employer contributions to personal pension schemes. The Department for Work and Pensions has produced guidance on the impact of the Regulations on pension schemes.

Workplace Policies and Culture
Make sure your equality, bullying and harassment policies clearly state that discrimination on grounds of age will not be tolerated. Make sure all staff are aware of the policies and provide any training necessary for their implementation. In addition, your IT policy should make it clear that email communications should not contain anything discriminatory. Incidents involving discrimination, harassment or victimisation on age grounds must be dealt with promptly and any complaints dealt with appropriately. Failure to do so could result in you being held responsible.

The penalties for age discrimination can be severe, with no upper limit to the compensation that an employment tribunal can award.

Useful Guidance
ACAS provides a useful guide entitled ‘Age and the Workplace’.

The Department for Work and Pensions also has guidance on the Regulations.