The Employment Equality (Age) Regulations 2006 make it unlawful for an employer to discriminate against an employee in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit (Regulation 7). This means that decisions about promotion can no longer be based on age. Decisions about promotion should be based on the skills and competencies required for the job. Any difference in treatment on the grounds of age will only be lawful if the employer can rely on the general defence of 'objective justification' or one of the exceptions in the Regulations.
(Please click here to view a PDF version of our note on objective justification in a new window).Employers who currently require a specific length of experience before an employee can be eligible for promotion will have to review their policies and practices. While this may be objectively justifiable, the employer must be able to show that there is a real need for the requisite experience, rather than that this has simply been the traditional policy.
The requirement of a certain qualification for promotion may be unlawful under the new regulations if that qualification is only available to persons of a certain age group. The use of such criteria will now only be lawful if that qualification is a genuine requirement for the job. In many cases workers will have the necessary skills even if they do not have the formal qualifications.
At present some employers will not promote employees to senior jobs after a certain age. This may be because they do not consider that the employee has long enough to make a real impression at that job before retirement or indeed the job requires expensive and lengthy training which is not cost effective given the likely length of time before retirement. Although these reasons may be justifiable they will now need to be carefully assessed. Regulation 7 (4), which permits employers not to recruit employees within six months of retirement, does not apply to internal promotions and so such decisions must either be objectively justifiable or fall within one of the general exceptions. The introduction of the new rules on retirement, which allow employees to ask to postpone their retirement (to be covered in a future Law Now), mean that it will be more difficult to predict how long any employee could remain in that job. This means the use of a maximum age for promotion is likely to be difficult to justify. (Please click here to view a PDF version of our note on general exceptions in a new window).
Employers will now have to review their promotion criteria and it is advisable for employers to keep extensive notes of decisions and the basis for those decisions, so that they can demonstrate that the criteria has been applied fairly. Prudent employers are also likely to start collating information on the age profile of their workforce, at all levels, to monitor whether there is a work environment from which an inference of age discrimination could be drawn.
For full listings on our Age Discrimination series, please click here to view in a new window.
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 12/04/2006.
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