UK: Preparing For The Onset Of Age Discrimination

Last Updated: 3 October 2006
Article by James Libson and Joanna Blackburn

On 1 October 2006, the Employment Equality (Age) Regulations 2006 ("the Regulations") came into force to provide protection for employees, applicants, contract workers and various other parties against discrimination, harassment and victimisation because of their age.

Whilst the Regulations are similar in many aspects to other discrimination legislation, there are a number of features that are unique and which employers will not have experienced previously. Set out below are some of the key provisions of the Regulations, together with some practical advice on how employers can put their house in order to ensure compliance.

Discrimination

The Regulations will make it unlawful to directly or indirectly discriminate on the grounds of age.

Direct discrimination will occur where a person is treated less favourably than others because of their age. For example, it will be unlawful on the grounds of age to decide not to employ someone, to dismiss, refuse to provide training, deny promotion or provide less favourable terms and conditions of employment.

Indirect discrimination will occur where a criterion, provision or practice is applied which disadvantages a group of people of a particular age. Examples of practices which may have the relevant adverse impact are recruitment, promotion or dismissal decisions based on experience, length of service or possession of qualifications where those qualifications are not essential job requirements.

It will also be unlawful to harass or victimise someone because of their age.

Justification

There will be limited circumstances when it will be lawful to treat people differently because of their age. The principal ground will be if the employer can show that there is "objective justification" for treating people differently. This will require employers to show that the discrimination was a proportionate method of achieving a legitimate business purpose.

For example, it might be necessary to fix a maximum age for the recruitment of employees to reflect training requirements or the need for a reasonable period of employment before retirement. Other potential legitimate aims may include the encouragement and reward of loyalty, health and safety issues and the facilitation of employment planning. It remains to be seen how this defence will be interpreted by employment tribunals, but it is expected that a relatively high standard of "objective justification" will be required.

Another basis of justification available to employers will be if there is a genuine occupational requirement for a person to be of a certain age. For example, if you are producing a play which has parts for older or younger characters. It is believed that this defence will rarely arise.

Retirement

The retirement rules are complicated but the key principle will be advanced planning, organisation and communication. The Regulations permit enforced retirement at the age of 65 or over subject to compliance with the required procedures, but will require justification of any compulsory retirement at an age below 65.

Adequate notice of between six and twelve months must be provided to the potential retiree and they must be informed that they have the option to request to continue working. It appears that if the request is made, the employer’s obligation is only to consider it and that the duty is procedural rather than substantive.

The legislation recognises that when the Regulations come into force there will be people for whom the notice periods are not viable – and there are transitional provisions which can be applied to specific situations.

Recruitment and Employment Agencies

The new legislation is likely to impact long established recruitment policies and many businesses will need to update and change their approach to the way in which they recruit.

It will be unlawful for an employer to discriminate on grounds of age against an applicant:

(a) in the arrangements for determining who is offered employment; or

(b) in the terms that are offered; or

(c) by refusing, or deliberately omitting, to offer the employment.

Employers will have to avoid the use of age specific language or requirements in their recruitment policies and advertisements. For example, an advert requiring "an energetic person, in touch with the latest thinking" or "10 years experience with have boardroom presence and gravitas" will almost certainly be considered discriminatory unless they can be objectively justified. Similarly, it will not be appropriate to pay an older candidate more to do the same job simply on the basis of age unless there is an objective justification.

The Regulations also contain specific rules relating to employment agencies. These rules will make it unlawful for an organisation that supplies contract workers to another organisation to discriminate on the grounds of age. Additionally, employment agencies will be held liable for damages if they discriminate on the instructions of a client. An employment agency can avoid liability where it has acted on discriminatory instructions if it can be shown that (a) it acted in reliance on a statement made by its client to the effect that the employer was lawfully entitled to refuse to offer employment on an ostensibly discriminatory basis; and (b) it was reasonable for the agency to rely on that statement.

The impact of the new legislation on recruitment for employers will principally be twofold:

  1. Employers will have to ensure that any instructions given to employment agencies are not discriminatory; and
  2. Employers need to ensure that any employment agencies they use have their own policies in place to prevent discrimination and they should consider making the prohibition of any discrimination a term of their contract with any employment agency in order that they can rely on this in the event that a candidate sues them.

Practical Advice

General

  • Businesses will need to foster a culture change so that age discrimination becomes unacceptable in the workplace.
  • Employers should start to address fairness in the workplace by adopting an equality policy to cover all forms of discrimination or up-dating an existing one to include age discrimination.
  • Policies for recruitment, selection, promotion, training, pay and other conditions of employment should be reviewed.
  • Policies relating to bullying and harassment should be reviewed to cover age.
  • Employers should consider the composition of their workforce and decide whether positive action is required to tackle any age imbalance.

Retirement

  • Any existing retirement policy will need updating to include the new retirement provisions.

Interviewing

  • Avoid asking age-related questions and instead focus on the applicant's competence.
  • Check decisions for any bias and make sure interviewers have received training in the skills required and equal opportunities/diversity.
  • Record and retain decisions for at least twelve months from the date of the interviews.

Recruitment

  • Job advertisements, job descriptions and specifications should be devoid of age related language or time requirements unless they can be shown to be objectively necessary.
  • Consider whether any pictures used in any company literature creates an image that could exclude or alienate certain age groups.
  • Remove age/date of birth from application forms and include it in a diversity monitoring form which will only be seen by the HR department.
  • Ensure instructions to employment agencies are not discriminatory unless there is an objective justification for it.
  • If specifying qualifications in an advert, ensure people at different ages are not disadvantaged. Consider other ways of specifying the skills/experience which are required.

This article is only intended as a general statement and no action should be taken in reliance on it without specific legal advice.

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