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Retirement Age and Discrimination - A Check List for Employers

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The Employment Equality (Age) Regulations 2006, which come into force on 1 October 2006, aim to achieve equal treatment in employment and vocational training to eradicate discrimination on the grounds of age.

Under the Regulations it will be unlawful to make employment decisions based on a person’s age. Retirement ages below 65 will be unlawful unless they can be objectively justified. The legislation also removes the upper age limits for unfair dismissal and redundancy.

Employers who have not already done so should examine current policies and practices where age is a factor. Here is a check list to help you ensure your business complies with the new law.

Retirement Age

It will not be age discrimination to have in place a compulsory retirement age of 65 or older but, if you do, the new statutory procedures must be followed. These include giving employees at least six months’ notice of their intended date of retirement and notifying them that they have the right to request to continue working beyond either the default retirement age or the normal retirement age set by the employer. Employers have a duty to consider such a request. It is therefore important to be aware of forthcoming retirements and to have the necessary systems in place for notifying employees and dealing with requests to continue working. You may decide not to have a set retirement age and to offer flexible working arrangements.

There are special rules that apply to employees due to retire between 1 October 2006 and 31 March 2007.

We recommend that you have an age profile of existing staff so that you can plan for retirements. This can also be used to inform your recruitment policy, rectifying any obvious age imbalance in the workforce, and to ensure that equal access is given to training and other opportunities.

Recruitment

When advertising for new staff, take care to avoid requirements which disadvantage a particular age group. Avoid insisting on a certain number of years’ experience where this cannot be justified, as this could discriminate against a young person, and do not use language that is age-related, such as the words ‘young’ or ‘mature’. Specifying knowledge and skills which are not a genuine requirement of the job could also constitute unlawful discrimination on the grounds of age. Target your advertising so that it reaches a variety of age groups.

Whilst it will not be unlawful to request a person’s date of birth on a job application form, this should only be used for monitoring/statistical purposes and to inform your equal opportunities policy. It should not be a consideration during the selection process.

Training

All employees must be given the same opportunities to develop their skills and maximise their employment potential. Employers and other training providers will not be able to set age limits for access to training unless they can show that there is a real need to apply such limits. Be careful not to assume that older members of the workforce are not interested in advancing their careers.

Performance Targets and Appraisals

Targets and performance standards for the same job should be the same, irrespective of the age of the employee. Appraisals must be handled with care. Reports should avoid ageist language such as ‘shows maturity for their age’.

Redundancy

The lower and upper age limit for statutory redundancy rights is removed. Once an employee has completed the employer’s minimum qualifying period, a worker under 18 or over 65 will have the same rights to redundancy payments as other employees. If an employer’s redundancy benefits scheme is significantly different from the statutory scheme, it may be challenged so it is important to amend it unless the differences can be objectively justified. In a redundancy situation, selection for redundancy should not be based on age.

Pay and Benefits

A thorough review of promotion procedures and all employee benefits should be carried out to identify practices and policies where age is a factor and changes made where necessary.

As regards length of service-based pay increases, any benefit based on five years’ service or less will be exempt. However, if for example a worker who has six years’ service claims that they are being discriminated against because they are being paid less than someone with more service, the employer must show that the difference in pay fulfils a genuine business need. If an employee considers that their employer’s benefits structure discriminates on grounds of age, he or she will be able to make a complaint to an employment tribunal.

Pensions

The pension provisions of the Regulations have been deferred until 1 December 2006 in order to determine if amendments are needed and to allow more time for compliance.

The Regulations will apply to occupational pensions and employer contributions to personal pensions. They will not apply to state pensions. Pension rights accrued prior to the introduction of the legislation will not be affected.

Workplace Policies and Culture

Make sure your equality, bullying and harassment policies clearly state that discrimination on grounds of age will not be tolerated. Make sure all staff are aware of the policy and provide any training necessary for its implementation. In addition, your IT policy should make it clear that email communications should not contain anything discriminatory. Incidents involving age discrimination, harassment or victimisation on age grounds must be dealt with promptly and any complaints dealt with appropriately. Failure to do so could result in the employer being held responsible. The penalties for age discrimination can be severe, with no upper limit to the compensation that an employment tribunal can award.

The Employment Equality (Age) Regulations 2006 affects your business and you should ensure that your employment practices, policies and procedures are fully compliant, so that all employees have equal access to help, guidance, development opportunities, promotion, remuneration and benefits, irrespective of their age.


About the Author

Gillhams Solicitors include specialist employment lawyers advising on employment issues, including retirement age restrictions, recruitment policies and redundancy.


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Article Published/Sorted/Amended on Scopulus 2006-07-20 20:41:09 in Legal Articles

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