UK: ACAS Publishes Guide on Age Discrimination

Last Updated: 11 May 2006
Article by Christopher Booth

There is little doubt that the Employment Equality (Age) Regulations 2006, which come into force on 1 October 2006, will have a significant impact on all aspects of the employment relationship. Employers will therefore welcome the recent publication by ACAS of ‘Age and the Workplace’ which aims to give practical guidance on the new rules. In this bulletin we summarise the main features of the guide, which is likely to be influential both in the workplace and before employment tribunals.

The ACAS Guide

The Guide is primarily aimed at employers and provides:-

  • A brief summary of the Regulations;
  • Advice on various aspects of employment such as recruitment and retirement;
  • Some frequently asked questions; and
  • Draft letters and a flow chart to help employers deal with the new retirement procedures.

ACAS has no doubt tried to keep the Guide to a reasonable length, but even so it runs to nearly 60 pages. Unfortunately, even at this length, the complexity of the regulations is such that the Guide lacks the detail many employers were hoping for. Some of its more important recommendations are set out below.


The Guide deals with various aspects of recruitment including application forms, job descriptions, advertisements, shortlisting and interviews.

Employers are advised to:-

  • Remove age/date of birth details from application forms and include them instead on diversity monitoring forms to be kept by HR;
  • Avoid references to age in job descriptions and person specs. In particular avoid asking for ‘so many years' experience’;
  • Avoid words in job adverts such as ‘mature’, ‘young’ or ‘energetic’; and
  • Enhance any university milk round interviews with a broader recruitment strategy to avoid restricting recruitment to young graduates.

The Guide highlights a late change to the Regulations allowing employers to refuse to recruit a worker who is older than, or within six months of, the employer's normal retirement age (or 65 if the employer does not have one). However it does not make it clear that this exemption does not apply to internal promotions.

Retaining Good Staff

The Guide warns against:-

  • Use of phrases in performance appraisals such as ‘shows remarkable maturity for their age’;
  • Use of last in first out or length of service in redundancy selection procedures; and
  • Excluding older members of the workforce from social events where workplace issues are discussed and progressed.


The Guide sets out briefly the new rules on retirement. These include the employer's duty to notify the employee of his right to request working beyond retirement age and the employer's duty to consider any such request. The inclusion of a ‘fair retirement flow chart’ as well as a number of draft letters for use when considering a request are useful but also serve to emphasise how complex and bureaucratic the new procedures will be.

Workplace Profile

The Guide encourages employers to obtain an age profile of their workforce to aid retirement planning and remedy any age inbalance. However it should be noted that under the Regulations positive action to prevent discrimination is only allowed to give particular age groups access to vocational training or to encourage such groups to take up employment opportunities.


The Guide outlines various exemptions from the Regulations including the rules which allow employers to offer certain service related benefits and enhanced redundancy schemes. However these topics are not covered in any depth and employers should take advice when considering these issues.

Practical Implications

Whilst the Guide contains some helpful information it lacks the detail to make it a really useful document.

Employers seeking guidance on the kinds of factor that will justify direct age discrimination or trying to get to grips with the complex transitional provisions for retirements taking place before 31 March 2007 will certainly not find the answers here. They will therefore need to consider the impact of the Regulations carefully in the coming months. Given the fairly short timescale one priority will be to draw up a clear timetable for reviewing policies and procedures and training managers.

Do You Need To Know…?

Recent ECJ Decisions on Annual Leave

The Working Time Regulations give workers the right to a minimum four weeks paid leave each year. At present the Regulations prevent an employer from making a payment in lieu of leave, except on termination. They also prohibit leave being carried over to a subsequent holiday year. The result is that if a worker fails to take his statutory leave, he loses it.

It had been thought that these provisions reflected European law. However a recent decision of the European Court of Justice suggests that although payments in lieu are unlawful (unless paid on termination), carry over is permitted. As a result UK law may have to be amended. In the meantime the safest course is for employers to encourage workers to take their full four weeks entitlement each year.

(Note that different considerations apply to holiday in excess of the statutory entitlement where both payment in lieu and carry over may be permitted under the worker's contract.)

Guidance on Disability

Revised guidance on how to determine whether someone is disabled for the purpose of the Disability Discrimination Act came into force on 1 May 2006. At over 40 pages long, and containing numerous practical examples, the new document takes account of recent changes to the law, including the fact that a mental illness need no longer be ‘clinically well-recognised’.

Although the Guidance does not have the force of law, it has considerable influence as it has to be taken into account by employment tribunals when deciding questions under the Act. It is therefore an important reference for all those dealing with disability issues within the workplace.

TUPE and Appeals Against Dismissal

The statutory dismissal procedures encourage an employee who has been dismissed to pursue an internal appeal, but say nothing about his status pending that appeal. Case law suggests that if the appeal fails then the effective date of termination will be the date of the original dismissal (unless the employment contract provides otherwise). On the other hand if the employee is reinstated the original dismissal vanishes, continuity is preserved and he will usually be entitled to back pay.

This has significant implications where a transferor dismisses an employee for gross misconduct prior to a TUPE transfer but then reinstates him at an appeal held after the transfer, as the recent case of G4S Justice Services v Anstey shows. The EAT held that in these circumstances the original dismissal is of no effect and the employee is regarded retrospectively as employed by the transferor immediately prior to the transfer and so transfers across. The case highlights the importance to the transferee of a thorough due diligence exercise so that any such potential liabilities can be identified.

Cases referred to in this update:
Federatie Nederlandse Vekbeweging v Staat der Nederlanden C-124/05; G4S Justice Services (UK) Ltd v (1) Anstey (2) Simpson (3) GSL UK Ltd EAT/0698/05

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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