From time to time over the years the Government enacts a piece of legislation that will have a fundamental effect on society. The Sex Discrimination Act 1975, Equal Pay Act 1970 and Race Relations Act 1976 were all aimed to protect certain groups in society from discrimination. More recently, in 2003, we have had legislation that protects discrimination based on Religion or Belief or on Sexual Orientation.

Everyone, however, has an age and the Employment Equality (Age) Regulations 2006 potentially apply to all those at work. The Regulations have come about as a result of a European Directive and mean from October 2006, discrimination on the grounds of age has been outlawed.

Firstly, direct discrimination is outlawed so that if employees are less favourably treated because of your age this will be discrimination unless it can be justified by the employer.  Secondly, there will be indirect discrimination if the employer applies a provision, criterion or practice which disadvantages you on the ground of your age and which cannot be justified. Third, victimisation and harassment on the grounds of age will be unlawful. But what does this mean in practical terms for employees and what must employers do to comply?

In general terms, age cannot be used as a factor in the employer’s decision making process from recruitment to termination of employment unless it can be justified.

There will be direct discrimination where the employer specifically uses age as a factor; i.e. ‘employees must be over 21’; employees must be ‘young’ or where the employer makes assumptions about a person’s abilities based upon age – unless this direct discrimination can be shown to be justified, for example for health and safety reasons older workers are excluded from certain physical work.  But a generalised assumption based on age is unlikely to be justified unless the circumstances of the employee are specifically considered; someone in their sixties may be fitter than someone in their thirties! So any decisions based on age alone are likely to be unlawful.

There will be indirect discrimination where an employer applies restrictions to or grants benefits which are likely to have an impact on certain age groups. So, for example, a requirement to hold a driving licence for five years may exclude younger people or the employer may give pay and benefits based on length of service. There is an exception for benefits up to five years of service but after that the employer will have to justify its remuneration structure. Terms and conditions of employment which are ostensibly neutral may have effect on age and be unlawful – unless justified as a legitimate means of carrying out the job. Advice should be taken on any terms which are thought to have an ‘ageist’ element.

Dismissal based on age will be direct discrimination. The Regulations also give employees a right to ask to work beyond their normal retirement age; the default age is set at 65.  There is a procedure which employers must follow to notify employees of their retirement age and the right to request working beyond that age.  They contain a number of time limits which must be complied with. The employee only has a right to request work beyond retirement age and not a right to actually work. These provisions are complicated but if the employer jumps the procedural hurdles the reason for dismissal will be retirement – and fair.  This means that if an employer follows the proper procedures, it can dismiss an employee when he or she reaches 65 without fear of facing claims for unfair dismissal or redundancy payments. Conversely, if the procedures are not complied with then any dismissal is going to be automatically unfair.

Age Concern and Help the Aged, brought a challenge against the the Employment Equality (Age) Regulations 2006, because they believed that the rules were in breach of the European Directive. The High Court ruled on 25th September 2009 that employers can still rely on the default retirement age of 65 and dismiss employees for no other reason than their age, subject to following the procedures referred to above.
The High Court decided that there was a legitimate social policy that justified having a default retirement age and that 65 was an appropriate default.
The Government has announced that it will bring forward its proposed review of the compulsory retirement age (scheduled for 2011) to 2010. Questions remain as to how long the current position will last.
Employers and employees should take advice if they have concerns that the legislation has been breached. Employers should review their terms and conditions and policies to ensure that they are age compliant. If employees feel that there has been age discrimination they would be prudent to take advice about the likely impact of these novel Regulations.

Morris Roberts has teamed with a leading set of employment chambers, Littleton Chambers in London, who are one of the Leaders in the field of discrimination law. In these challenging commercial times Morris Roberts would be pleased to provide advice on all aspects of employment law including age discrimination. Employers may also feel that a general employment ‘health check’ would be prudent whilst employees would like to know where they stand.

Contact Mike Evans on    
01267 239000     
enquiries@morrisroberts.co.uk  www.morrisroberts.co.uk

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