United States: Age At A Glance

Last Updated: May 31 2006

The Employment Equality (Age) Regulations 2006 (the "Regulations"), which come into force on 1 October 2006, make it unlawful for organisations in Great Britain to discriminate against people of all ages in respect of employment and vocational training.

What Is Age Discrimination?

There is no definition of ‘age’ in the Regulations. However, the structure of the proposed legislation follows that of the existing UK discrimination laws and prohibits:

  • Direct discrimination
  • Indirect discrimination
  • Harassment
  • Victimisation
  • Instructions to Discriminate
  • Post-termination discrimination

Both direct and indirect discrimination will be capable of justification if the employer can show that the treatment or practice was a proportionate means of achieving a legitimate aim. However, cost alone is unlikely to be sufficient justification. Please contact Ann Bevitt (abevitt@mofo.com) or Suzanne Horne (

It may also be legitimate to discriminate on the grounds of age if it is a genuine occupational requirement for the job or an applicant is within 6 months of employer’s retirement age. Additionally, there is a limited exception in relation to positive action.

Who Needs to Comply?

The following must not discriminate:

  • Employers, including employment agencies
  • Providers of vocational training
  • Trade unions, professional associations and employers’ organisations
  • Trustees and managers of occupational pension schemes

Who Will Be Protected?

  • Employees, including those on fixed-term contracts
  • Job applicants
  • Self-employed people (including specific provisions for partners)
  • Contract workers
  • Paid office holders, e.g. company directors
  • Crown-appointed (including unpaid) office holders
  • Members of trade organisations
  • Anyone in vocational training and anyone receiving or holding a professional or trade qualification
  • Servants of the Crown
  • Police officers

But not…

  • Unpaid office holders
  • Those serving in any naval, military or air forces of the Crown
  • Providers of goods and services

Service Related Benefits

Benefits awarded based upon a length of service requirement of 5 years or less will be exempted from the Regulations. Otherwise, length of service can be used where it is ‘reasonably appears’ to the employer that the way in which it uses the length of service criterion ‘fulfils a business need’, i.e. encouraging loyalty or motivation or rewarding experience. Please contact Ann Bevitt (abevitt@mofo.com) or Suzanne Horne (shorne@mofo.com) for further details.

An employer will only be able to limit invalidity benefits such as sick pay or permanent health insurance schemes by age if they can objectively justify the decision.

Pension Schemes

The Regulations outlaw discrimination against current and prospective members of pension schemes from the rules, practices and provisions of the schemes. Please contact Ann Bevitt (abevitt@mofo.com) or Suzanne Horne (shorne@mofo.com) for further details.

Retirement and Unfair Dismissal

There is a default retirement age of 65. Employers are only able to have a normal retirement age below 65 if it can be objectively justified.

Retirement will be a potentially fair reason for a dismissal. Where the employer establishes that retirement was the reason for dismissal, it will still need to follow the following procedure set down in the Regulations:

  1. The employer must notify the employee in writing of the intended date of retirement ("IDR") and the employee’s right to request to work beyond the IDR between 1 year and 6 months before the IDR;
  2. Not later than 3 months before the IDR, the employee can make a written request to stay on; and
  3. The employer must consider the request which involves holding a meeting with the employee, notifying the employee of the decision in writing and offering and if necessary holding an appeal meeting. The employer does not have an obligation to give reasons for its refusal.

The procedure must be followed within a reasonable period. There will be no age restriction on bringing an unfair dismissal claim. For further details about this procedure and practical guidance on handling requests to work beyond the IDR, please contact Ann Bevitt (abevitt@mofo.com) or Suzanne Horne (shorne@mofo.com).

The Regulations contain transitional provisions which apply to retirements occurring between 1 October 2006 and 31 March 2007. Where retirements occur in this period both employer and employee may give shorter notice than they would normally have to do. However, there is no obligation on employers to give any notices under the Regulations before 1 October 2006.

Redundancy

There will no longer be any age restrictions on those who are eligible for a statutory redundancy payment (the "SRP"). However, the method of calculating the SRP by use of age banding will remain in force. There is a specific exemption from the Regulations for enhanced redundancy pay provided the employer calculates all employees’ enhanced pay in the same way. Please contact Ann Bevitt (abevitt@mofo.com) or Suzanne Horne (shorne@mofo.com) for further details.

What Is the Practical Impact for You and Your Organisation?

The legislation will impact the following:

  • Recruitment and selection
  • Employment
  • Pay and benefits
  • Promotion
  • Training and development
  • Termination
  • Retirement
  • Retention and redundancy

You or your organisation may also be served with an age questionnaire. Claims of discrimination under the Regulations must be brought within 3 months of the act complained of and will be heard by an employment tribunal. There is no minimum length of service qualification necessary to bring a claim of discrimination. Awards for successful claims for unlawful age discrimination will be uncapped, comprising of compensation and injury to feelings. Employers could be vicariously responsible for the acts of employees who discriminate on grounds of age. Individual employees could also be personally liable for their unlawful acts. Please contact Ann Bevitt (abevitt@mofo.com) or Suzanne Horne (shorne@mofo.com) for further details, including practical guidance on investigating complaints of age discrimination.

Failure to follow the retirement procedure may result in the dismissal being deemed automatically unfair and a tribunal may award additional compensation of 4-8 weeks capped pay.

What Should You & Your Organisation Be Doing?

  • Know your organisation by conducting an audit to identify the age profile of your current workforce
  • Review all personnel application forms, contracts, service agreements, benefits, policies, practices and procedures to identify and eliminate risks
  • Implement an age policy as part of your organisation’s approach to equality and diversity
  • Put in place procedures and checklists for handling age issues such as requests to work beyond the IDR and investigating complaints of age discrimination (please contact Ann Bevitt (abevitt@mofo.com) or Suzanne Horne (shorne@mofo.com) for further information, including standard documentation and flowcharts).
  • Communicate and, if necessary, train your organisation’s managers and staff on what sort of behaviour is and is not acceptable

The Regulations may be found online at:

http://www.opsi.gov.uk/si/si2006/20061031.htm

If you or your organisation has any questions on the Employment Equality (Age) Regulations 2006, please contact Ann Bevitt (abevitt@mofo.com) or Suzanne Horne (shorne@mofo.com).

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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