ALARM SOUTH EAST
Employment Seminar
AGE DISCRIMINATION
DAVID KNAPP
JAMES MAJOR
Discrimination Legislation
 Unlimited damages
 Committed and competent Claimant lawyers
 A good thing?
Current Position
 No age discrimination legislation
 But Employment Equality (Age) Regulations 2006 comes into
force from 1 October 2006
 Age discrimination will be unlawful
Purpose
 Government’s stated aims:
– to ensure nobody is denied a job or harassed because of
their age
– workers of all ages have equal chance of training and
promotion
– to create a more diverse workforce by helping employers
attract, motivate and retain staff
Scope of Protection
 Direct discrimination
 Indirect discrimination
 Victimisation
 Harassment
 Direct and indirect discrimination can be justified if employer
can show it was a proportionate means of achieving a
legitimate aim
Discrimination at the start of Employment
 It is unlawful for an employer to discriminate on the grounds
of age:
– in the arrangements for determining to whom offers of
employment should be made
– by refusing to offer employment
– in the terms on which employment is offered
 The first two provisions do not apply to a person who is aged
65 or over
Advertising
 Unlike other forms of discrimination, a discriminatory advert in
itself is not unlawful
 However, a discriminatory advert will be good evidence to
show that the refusal of an application was unlawful age
discrimination
 Therefore:
– ensure advertisement does not contain phrases which
could be related to age
– if there is a genuine occupational requirement, the advert
should make that clear
Sifting, Selection and Interviews
 Review selection criteria - beware of minimum and
maximum ages or other phrases which could be related to
age
 Age will be discernible from applications
 Sifters should be given Equal Opportunities Policy and
should refer to the selection criteria
 At interview, ensure questioning is not discriminatory and
that careful notes are kept, including a note of any
relevant genuine occupational requirement
Employment Agencies
 Employer will be responsible for the discriminatory acts of the
agency
 Unlawful for an agency to discriminate against any person on
the grounds of age
 Clear instructions to agencies as to job and selection criteria
Discrimination during Employment
 Service-related pay and benefits exception
 Enhanced redundancy payments
 Employment related insurance
 Pensions
 Positive action exception
 Vocational training
Service-related Pay and Benefits Exception
(1)
 There is an exception for service-related pay and benefits
where:
– the length of service criterion is less than five years and
– the same criterion applies to all other workers doing
similar work
 E.g. a requirement that employees complete two years of
service before they are entitled to private health insurance will
not be discriminatory
Service-related Pay and Benefits Exception
(2)
 There is also a general exception for service-related pay and
benefits linked to a period of service in excess of five years
providing:
– the benefit is given with the aim of rewarding loyalty,
encouraging motivation or recognising experience and
– the aim pursued will bring business benefits
 E.g. increased holiday entitlement after seven years of
service will not be discriminatory providing the employer can
show it rewards loyalty and benefits the business
Vocational Training
 Employers and providers of vocational training cannot
discriminate on grounds of age
 Access to training should be available to all
 Exclusion for schools and sixth form colleges
Discrimination on Termination

Default retirement age of 65 years. Employers will have to justify a
normal retirement age below 65 years

If a retirement is “planned” there is a presumption that the employer
is correct in saying that the reason for a dismissal is retirement

A retirement will be planned if:
– it takes effect at the national default retirement age of 65
– it takes effect at the employer’s normal retirement age
(retirement ages below 65 will have to be objectively justified)
– the employer has followed the duty to consider procedure
Duty to Consider: Notification

Employer must give at least 6 months but no more than 12
months notice in writing of:
– the intended retirement date
– the right to request to work beyond the intended retirement
date and
– the employer’s duty to consider the request

If the employer misses the 6 month deadline, it has a continuing
obligation to notify the employee up to 14 days prior to the
intended date of retirement;

Penalty for failure to notify – 8 weeks’ pay
Duty to Consider: Request to Continue
Working
 Employee must make their request to continue working
between 6 months and 3 months prior to the intended
retirement date
 If the employer misses the 6 month notification deadline,
the employee can make their request at any time up to
the intended retirement date
Duty to Consider: Consideration of Request
 Employer must meet the employee to discuss the request
within a reasonable period
 Employee has the right to be accompanied
 Employer must then give the employee its decision as soon
as reasonably practicable after the meeting but does not have
to give a reason for the decision
 If the intended retirement date passes before the employee is
notified of the decision, employment continues until the
decision is notified to the employee
Duty to Consider: Appeal
 Employee has a right of appeal
 Employer must hold an appeal meeting and notify the
employee of the outcome within a reasonable period
 Employment does not continue beyond the intended
retirement date pending the outcome of the appeal
Retirement: Transitional Provisions (1)
 Before 1st October 2006:
– give notice of at least 4 weeks of intended date of
retirement
– on 1st October write to employee informing them of right
to request working longer
– employee can then make request up to 4 weeks after the
date of termination
– employer must follow duty to consider procedure
Retirement: Transitional Provisions (2)
 After 1st October 2006:
– give notice of the intended date of retirement of the longer
of contractual notice and statutory minimum notice
– inform employee of right to request working longer at same
time
– employee can then make request where practicable up to
4 weeks before the intended date of retirement, otherwise
as soon as reasonably practicable but in any event within
4 weeks after the date of termination
– employer must follow duty to consider procedure