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.

Recruitment

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.

Retirement

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.

Exemptions

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.