Employment Law - Age Discrimination

The Government has recently published the draft Employment Equality (Age) Regulations 2006, the purpose of which, in keeping with our obligations as part of the European Union, is to outlaw age discrimination in the United Kingdom by 1st October 2006.

The working population is getting older - employers will in future years have more old workers to recruit and manage and fewer young workers. There are currently 20 million people aged 50 and over in the UK. By 2030 this figure is expected to reach 27 million – an increase of 37 per cent.

People are also working longer – increased life expectancy, combined with shortfalls in pension provision, will result in employees retiring later than anticipated.
The draft Regulations will be subject to review and refinement before introduction in October 2006 but, once implemented, will ban both direct and indirect discrimination (including harassment and victimisation) on the grounds of age.

Direct discrimination will occur where a person's actual or perceived age is used as a reason for different treatment in a comparable situation and there is no objective justification for doing so. Indirect age discrimination will occur where a blanket policy or working practice disadvantages a person because of his or her age (even if this effect is inadvertent) and, again, there is no objective justification for doing so.

The key proposals in the Regulations are:-

• a ban on age discrimination in recruitment, promotion, training and terms and conditions of employment
• a ban on compulsory retirement below 65, unless objectively justified
• to remove the upper qualifying age limit for unfair dismissal and redundancy claims
• to require employers to give employees at least six months written notice of compulsory retirement
• to impose a duty on employers properly to consider an employee's request to continue working beyond retirement.

There will be a defence for employers if they can show that direct and/or indirect age discrimination is “a proportionate means of achieving a legitimate aim”. The Government has stressed that this is a test which will not be easy to satisfy.

Employers will need to review existing polices, procedures and recruitment methods in order to ensure compliance with the Regulations as, in common with other discrimination legislation, there is no upper limit on compensation for successful claimants.