Age Discrimination - The Employment Equality (Age) Regulations 2006

The Employment Equality (Age) Regulations 2006 come into force on 1st October 2006, making it unlawful for employers and a number of other bodies to discriminate against a person on the ground of his or her age. The Regulations will apply to employees, agency workers and job applicants alike.

The Regulations will provide protection for younger workers as well as protecting older workers from discrimination. The Regulations apply to recruitment procedures, job offers and rejections, terms of employment, promotions and training, dismissals and ‘any other detriment'.

The Regulations prohibit direct and indirect discrimination, victimisation and harassment in employment. However, the Regulations provide a defence in that direct and indirect discrimination will both be lawful if they can be objectively justified as a ‘proportionate means of achieving a legitimate aim'.

If an employee brings and succeeds in a claim for age discrimination then the Employment Tribunal may award compensation for injury to feelings as well as compensation for loss of earnings.

So what does this mean for employers?

Direct Discrimination
As of 1st October 2006 it will be unlawful to:-

reject a job applicant because they are too old or too young
apply an upper or lower age limit to jobs
pay younger workers less than older workers

unless the employer has a justification defence for doing so.

Example:-
An employer requires its machine operatives to retire at 55. This would be directly discriminatory against the over-55's unless it could be objectively justified by the employer. If the employer was able to show that his legitimate aim was to protect the health, welfare and safety of his employees, then he may well have a defence. However, the employer would be likely to have to prove that it was potentially dangerous for the over-55's to use the machinery, and provide evidence that the over-55's were more likely to injure themselves when working the machinery than younger workers. Assumptions will not be sufficient. It would be very unlikely that this policy would be a proportionate means of achieving a legitimate aim, and this employer would be better advised to require his employees over-55 to undergo more regular health checks.

Indirect Discrimination
As of 1st October 2006 it will be unlawful to:-

make recruitment or promotion conditional on a certain number of years experience
select employees for redundancy on the basis of length of service
use length of service as a criteria for access to benefits
apply unnecessary health and fitness tests in recruitment

unless the employer has a justification defence for doing so, or the practice is covered by the Special Rules relating to service related pay and benefits.

Example:-
An employer decides to consider applications for a senior position from individuals with over 15 years experience only. It is a perfectly legitimate aim for the employer to want to employ an individual who can perform the job adequately. It is likely, however, that it will be quite difficult to show that a blanket policy of rejecting all applicants with less than 15 years experience is a proportionate means to achieving their aim. Unless the employer can show a very good reason why they require someone with over 15 years experience, a better option would be for the employer to produce a less discriminatory selection criteria focussing on the skills and abilities required.

Retirement Ages

Compulsory retirement at under 65 will amount to direct discrimination and unfair dismissal unless the employer can show that the lower retirement age is justified. It is believed that it will be very difficult to justify a retirement age under the age of 65 as it will not be a proportionate means of achieving a legitimate aim.

The Regulations introduce a new default retirement age of 65. Policy thinking behind the new law is that employers should be able to retire all employees at the age of 65, whether the employee likes it or not.

All retirements must, however, follow the procedure set out below.

The new ‘duty to consider' procedure:-

Between 6 and 12 months before retirement the employer must notify in writing the employee of their retirement date and their right to request not to retire on that date
The employee must request in writing not to retire between 3 and 6 months before their retirement date – the request may be to continue indefinitely or for a set period
The employer must meet with the employee to discuss the request within a reasonable period of receiving it
Following the meeting, the employer must notify the employee in writing of their decision as soon as reasonably practicable but has no legal obligation to give reasons for their refusal
Where the request is refused, the employee may appeal in writing and then the employer must convene an appeal meeting and give a written decision on the appeal
The employee is entitled to be accompanied at the original meeting and any appeal meeting by a trade union representative or colleague

The above procedure will apply again at the end of any stated extension to the retirement date or where an employee has been allowed to remain indefinitely.

There are transitional arrangements for employees retiring on or before 1st April 2007 where it would not be possible to give 6 months notice as of 1st October 2006 – the general rule is that the employer must give notice as soon as reasonably practicable after 1st October 2006 (and then follow the rest of the procedure)

Failure to comply with the above procedure is likely to result in the employee succeeding in a claim for unfair dismissal at the Employment Tribunal, which could result in a substantial award of compensation.

The National Minimum Wage Exemption

The national minimum wage is set at different levels depending on the age of the worker (as of 1st October 2006 the rates will be £3.30 for those aged 16 and 17, £4.45 for those aged 18-21, and £5.35 for those aged 22 and over). Clearly this is a directly discriminatory practice. However, the regulations specifically allow the remuneration of one worker (Mr. A) at the lower rate than another (Miss. B), where the national minimum wage of Mr A's age is lower than that of Miss B's age, and Mr A is paid below the single hourly rate that applies to those aged 22 or over.

Whist this rule protects employers who pay only the national minimum wage rates, employers should be aware that it does not mean that employers are free to pay (without any reason) different rates above the national minimum age to workers according to their age. For example, if an employer pays a 20 year old worker £6 per hour and a 22 year old worker £8 per hour, the 20 year old could bring a claim for discrimination as he or she is not being paid below the single hourly rate of £5.35.

This article gives a brief summary of some the areas of the new Age Discrimination laws. It cannot be relied upon in any particular case. You should always seek legal advice on each individual case. Please contact a member of the Employment Team at Lemon & Co for further information on 01793 527141.

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