Age discrimination now outlawed in UK

Laws banning age discrimination in workplace came into effect on 1 October 2006, with amendments scheduled to come into force on 1 December 2006. The new laws will outlaw age discrimination in terms of recruitment, promotion and training.

It follows laws to outlaw race and sex discrimination and is likely to prove as momentous as those laws in changing workplace practice.

It is now unlawful to discriminate against an employee under the age of 65 on grounds of age, which means it does not purely outlaw discrimination in terms of old age but includes younger workers as well as older workers.

Employers should note that if a case is brought against them and is successful there will be no statutory limit on the amount of damages that can be awarded.

Here is our summary of the key points:

Recruitment, Selection & Promotion

In recruitment, selection or promotion, an employer cannot discount an individual simply because they’re too old or young, or because they won’t ‘fit’ into a department. Employers must review any job application forms and advertisements to check for controversial words or phrases that might indicate a certain age group - words such as ‘energetic’, ‘potential’, ‘experienced’, ‘young’ or even ‘dynamic’ may give rise to a complaint. In future, selection must be based on specific skills required for the role, and in the case of promotion, performance, rather than setting the criteria on the basis of age.

Benefits

Benefits given to staff could be deemed ‘unlawful discrimination’ if the criteria for awarding them is based on age – there is an implication that younger employees haven’t been able to meet the criteria set and are, therefore, discriminated against. The regulations state that where service related benefits are provided and the basis for determining the level of those benefits is on age or experience then this is permissible up to a limit of 5 years. For example, an employee is given an extra day’s holiday for each year of service up to a maximum of 5 years.

Retirement

Retirement ages of less than the National Default Retirement Age (currently set at 65) will be directly discriminatory unless they can be objectively justified under the standard procedure. In general terms, the regulations aim to remove the ability to retire employees simply because that employee has reached a certain age. The ‘Duty To Consider’ procedure has been included to assist in genuine retirement situations. Failure to follow the defined procedure may result in the retirement being deemed unfair dismissal and will undoubtedly result in age discrimination claims.

Pensions

Given the complexity of the nature of pensions, these have, for the most part, been excluded from the Regulations. However, employers and trustees of the occupational pension need to review the scheme and consider the acceptability of any criteria used based on age.

Dismissal

Length of service remains a legitimate factor in calculating redundancy payment. The age multipliers will go, so all years of service will count equally whatever the employee’s age. Upper and lower ages for payments will be removed but the 20-year cap on service for calculating payments will remain. While not addressed specifically ‘Last in first out’ will clearly be a more risky means of selection for redundancy.
These are the basics: below are some links to key sources, where comprehensive information is available.

DISCLAIMER: This article is not intended to be a comprehensive briefing into the legislation and is not intended to provide legal advice. This briefing should not be relied upon or treated as substitute for specific advice regarding individual circumstance. Page Personnel accepts no responsibility for errors or omissions or advice given in this briefing or any reliance placed in the information contained in this briefing. The information contained in this briefing is on an as-is basis and is correct at the date of publication. Michael Page International and Accountancy Additions accepts no responsibility for changes in law or practice after the date of this briefing.