AGE DISCRIMINATION

ARE YOU READY FOR THE COMING OF AGE?

From 1 October 2006 all employees will be protected against discrimination on the grounds of age, whatever age that may be.

This law will work in a similar way to sex, race and other established forms of discrimination whether it is direct or indirect discrimination in that you must not treat a person less favourably because of their age and using this as a basis for prejudice against any unfair treatment.

The legislation mainly focuses on older people with regards to retirement and pensions but will affect younger persons with regards to recruitment and redundancy.

The Government states that treating people differently on grounds of age will be lawful only in exceptional circumstances by reference to one or more of the following five specific aims and only if it is appropriate and necessary in the particular circumstances

		Health, welfare and safety
		Facilitation of employment training - a business which has a number of people approaching retirement age at the same time will need to plan for the future and it may be appropriate in these circumstances to promote younger employees to fill the forthcoming gaps in senior management
		The particular training requirements of the post in question - for example, air traffic controllers who have to have high levels of health and fitness and concentration and who undergo extensive theoretical, practical training and on the job training
		Encouraging and reward loyalty - this is intended to be primarily used to justify providing pay and benefits based on the length of service or experience
		The need for a reasonable period of employment before retirement - this is likely to be used for positions which require training and, when someone a few months short of 65 applies, it is deemed not to be worthwhile training them

It is estimated that the introduction of the age discrimination laws could cost £193 million in litigation costs in the first year of implementation.

So how will this affect your Company and what do you have to do?

The key area is the impact on employers where employees are due to retire in the period after the legislation takes effect, ie during what is being called the transition period of 1 October 2006 and 31 March 2007 during which the Transition Rules are:

These requirements will require you to hold meetings to discuss retirement and Retirement Dismissals will come under the Statutory Minimum Disciplinary and Grievance Procedures.

There are also set requirements for notice that you and the employee must give before and after 1 October 2006 as follows:

Notice given before 1 October 2006

If you give the employee notice before 1 October that they are to be retired after 1 October 2006 but before 1 April 2007:

		Notice must be at least the period required by the contract of employment
		Where the period of notice required by the contract exceeds 4 weeks, at least 4 weeks ( see note below )

On 1 October, or as soon as practicable afterwards:

		You must write to the employee telling them of their right to request working longer
		The employee can make the request after their contract has been terminated but not more than 4 weeks afterwards
		A meeting to discuss the request, and any subsequent appeal meeting, must be held within a reasonable period. The employee can ask to be accompanied.

Notice given after 1 October 2006

If you give the employee notice after 1 October that they are to be retired before 1 April 2007:

		You must write to the employee notifying them of the intended retirement date – giving the longer of contractual or statutory notice
		You must tell them in writing that they have a right to request working longer. (An employee who wants to exercise this right should make a written request.)
		Where possible, 4 weeks before the intended retirement date
		As soon as reasonably practicable after being notified of the ‘right to request'.

Note:

		Requests can be made after the employee's contract has been terminated but not more than 4 weeks after termination
		A meeting to discuss the request, and any subsequent appeal meeting, must be held within a reasonable period. The employee can ask to be accompanied.

Anyone retiring on or after 1 April 2007 will be subject to the full retirement procedure below:

Process for Retirement

		Notify the employee in writing of their intended retirement date and their right to request to go on working beyond this date – this should be done at least 6 months in advance but no more than 12 months before the intended date
		The employee must notify you no less than 3 months before the intended retirement date that they want to request working beyond the retirement age
		The request from the employee must be in writing and state whether they want to continue to work indefinitely, for a stated period or until a certain date
		The employee can only make one request in relation to their intended retirement date. If you fail to notify the employee of their intended retirement date six months before that date, the employee can still make a request not to retire at any time before the retirement date
		When you receive a request to continue working from an employee, you must normally hold a meeting with the employee to discuss the request. If you accept the request, you may not need to hold a meeting. You should amend the employee's contract of employment to reflect the new intended retirement date and if necessary, the new employment pattern.
		If you consider the request and decide that it is likely that you wish to continue with the retirement, you should hold a meeting with the employee in order to enable the employee to put their case to you. The employee has the right to be accompanied at this meeting by either a work colleague or a trade union representative employed by you or the organisation.
		The representative can address the meeting but cannot answer questions on their behalf. They can also confer with the employee during the meeting.
		The meeting is an opportunity for the employee to put their case to you. At the end of the meeting you may decide that although you cannot agree to the employee's stated request, you may be able to find a compromise solution. You can propose alternative working patterns and retirement dates for the employee to consider.
		Remember that there are positive reasons for agreeing to the employee working beyond their intended retirement date. These include retaining the experience and knowledge of the employee and a saving in recruitment and training costs necessary to replace the employee.
		Following the meeting, if you decide to accept the employee's request you should inform them that you have accepted it and state the new employment pattern and the new retirement date.
		If you decide to refuse the request from the employee then you should confirm with them that you still wish to retire them, either on the original intended retirement date or an alternative later date.
		Any decision should be given to the employee in writing and should be dated. The employee has the right of appeal against your decision.
		You are not required to give a reason for your decision to refuse their request to continue working.
		If the employee does appeal, the appeal meeting is their final opportunity to put their case before you. You may decide that although you cannot agree to the employee's stated request, you may be able to find a compromise solution. You can propose alternative working patterns and retirement dates for the employee to consider.
		If after the meeting you decide to accept the employee's request, you should inform them that you have accepted the appeal and state the new employment pattern and the new intended retirement date.
		If you decide to reject the appeal you should confirm with the employee that you still wish to retire them and the date that the retirement is to take effect.
		Any decision should be given in writing and should be dated.

It is in the best interest of both you and the employee to handle all retirements sensitively and with care. It is also important to remember that retiring an employee is a form of dismissal and therefore following the correct procedure will lessen the risk of you facing an unfair dismissal claim.

If you fail to notify the employee six months in advance of retirement of their intended retirement date and their right to request to carry on working, you may be liable for compensation and you have an ongoing duty (up to 2 weeks before the intended retirement date) to give them this information. If you fail to do this, the dismissal will be automatically unfair.

Further, if an employee does request in writing not to be retired at the intended date, you must consider this request as explained above. Failure to do so will make the dismissal automatically unfair.

Other areas that this change will affect are:

Recruitment

You will have to ensure that you carefully consider all discrimination elements that will now include age.

You should not require job applicants to state their age as part of the application. You must consider job specifications and identify the purpose, tasks and responsibilities of the role. When considering the kind of person you wish to appoint, you will need to consider whether the standards for experience, personal qualities, and qualifications that you set will be discriminatory on grounds of age (whether older or younger). Words such as 'energetic' or 'mature person' can be taken to be references to people of a certain age and thus can be indirectly discriminatory.

In an Irish case of Equality Authority v Ryanair, Ryanair's recruitment practices were scrutinised and found unlawful. It was held that a newspaper advertisement for 'young and dynamic professional' was discriminatory, although Ryanair argued that in that context 'young' was intended to convey enthusiasm, ambition and 'dynamism'. The test to be applied was not whether there was an intention to discriminate, but whether the advertisement could be reasonably understood to indicate an intention to exclude the 'not young'.

It is acceptable to ask for service qualification and experience, but when setting these you should be sure that you have good reasons why you need employees with that level of experience. Even references to qualifications can be deemed indirectly discriminatory, e.g. a requirement that candidates must have at least 5 GCSEs will rule out a large percentage of the working population who left school before GCSEs were introduced.

Therefore when advertising vacancies, it is sensible to use a variety of methods, for example, young people are more likely to use career services, job centres and newspapers, whilst older people may tend to rely on community and business networks.

It is clear that, as with other types of discrimination, customer preference will not be a defence for an employer. Therefore, it would be unlawful to advertise for a young person for a position as a presenter of a children's television programme or an editor of a youth magazine, because you believe that is what the viewers or readers want.

If you use recruitment agencies, you should review their equal opportunities policies and general approach to diversity to ensure that they operate fairly. You can ask an agency for an indemnity against any claims of discrimination, or to agree to a certain code of conduct.

As interviewees have the right to see file notes from interviews, it is important to keep a record of questions and responses. Remember that this right includes handwritten comments scribbled in the margin of cvs. Whenever possible use a panel of interviewers, or even for you to be accompanied. If there is a panel, try to ensure it has a mixture of genders, ages and ethnicities where possible. You should be using tracking sheets of applicants that includes their ethnicity and why they are rejected, so consider adding onto this sheet, the different age groups logging success rates. If you use an application form you can monitor this by the separate equal opportunities sheet that is (or should be attached) to the application form.

Redundancy

At the moment this is quite ambiguous as there are no guidelines at present regarding what happens if you make someone below the age of 20 or above the age of 64.

Pay and Benefits

You should also now consider pay and benefits structures and prepare for the change. Can different treatment be justified if you use pay linked to service? As one of the above proposed five specific defences to age discrimination claims, is 'encouraging or rewarding loyalty', it is envisaged that you can justify linking pay and benefits to service. However, you should review your pay structure and be in a position to demonstrate that there are good business reasons for doing so. A tribunal would look for evidence that, for example, linking holiday entitlement to years of service does, in fact, encourage and reward loyalty.

Benefits such as pension schemes are affected and you will need to check that your scheme is compliant with regards to arrangements for early and late retirement and age related entrance or contributions.

You will also have to consider whether your life insurance policies discriminate on the grounds of age.

Promotion and Training

In Noonan v Accountancy Connections, a 50 something accountant with 20 years experience was rejected for two senior positions because he was 'too senior'. The employer said that it wanted people of only two-three years experience and that it would be difficult if he was older than his line manager. Mr Noonan argued that the effect of this requirement was to exclude most candidates over 30 and that the employer's arguments were generalisations not based on objective evidence.

Therefore, be sure to also be careful in promotion and training areas.

Next Steps

You should be preparing for this big change and review your current policies and procedures to ensure that where age bias might be lurking, particularly in the key areas of retirement and recruitment.

If you don't already, consider offering flexible retirement arrangements, e.g. allowing part-time working, or stepping down to a lower grade.

A Code of Practice produced by Age Positive on age diversity already exists that covers good practice in the six areas of employment - recruitment, selection, promotion, training and development, redundancy and retirement. For further details visit www.agepositive.gov.uk/complogos/AgeDIversityBook2004.pdf

Acas have also produced a good leaflet on Age and the Workplace www.acas.co.uk

Or you can visit www.dti.gov.uk/employment/discrimination/age-discrimination and download an 8 page age legislation factsheet from the DTI.