The States of Guernsey is being asked to approve the introduction of legislation preventing age discrimination.
These proposals will be voted upon in the April 2025 meeting.
The prospect of this legislation has been on the horizon for years, and while the final form of the legislation is far from settled, there are points for Guernsey employers to be aware of.
What has happened
Following consultation in 2024, last week the Committee for Employment and Social Security issued a policy letter setting out proposals to amend the Prevention of Discrimination (Guernsey) Ordinance, 2022 to provide protection from discrimination, harassment and victimisation on the ground of age.
This protection will apply in relation to employment, as well as in connection with the provision of goods and services, accommodation and education and in the membership of clubs and associations. The proposals align broadly with the position in the UK and/or in Jersey.
Proposed objective justification for age discrimination
Guernsey law already includes protection from discrimination on the grounds of sex, marriage, gender reassignment, maternity and adoption leave, race, disability, carer status, sexual orientation, and religion or belief.
However the policy letter notes that 'age' has specific qualities that distinguishes it from most of these other protected grounds.
The proposals contemplate that it will be possible for an employer to directly discriminate against employees on the basis of age provided that the employer can show it is a 'proportionate means of achieving a legitimate aim'. This is in contrast to the position in relation to other protected grounds where direct discrimination can never be objectively justified.
Specific exceptions for age discrimination
The policy letter outlines several exceptions where age-based differential treatment will be permissible. The key employment related exemptions are:
- Employment terms: Employers will continue to
be able to provide rates of pay or terms and conditions based on
length of service and seniority.
- Redundancy: Redundancy payments and selection
for redundancy can continue to be based on length of service (but
selection for redundancy must not be directly based on age).
- Pensions: The provision of pension schemes and
the terms of that scheme are exempt. This exemption extends to the
trustees and administrators administering such schemes. The
proposals here mirror the Jersey position rather than the UK
position.
- Benefits: Occupational benefits which have an
actuarial or risk-based element (ie insurance schemes such as
health insurance) can have an age criteria, although if the age
criteria is below state pension age it will need be to objectively
justified. However discrimination in relation to occupational
benefits which have no connection to age (eg a performance related
bonus or annual leave entitlement) cannot be justified.
- Childcare: Employers can still provide
childcare for their employees in respect of children of particular
ages.
- Minimum wage: A different minimum wage will
still be permissible for 16 and 17 year olds.
- Young people: People below school leaving age will not be able to make an age discrimination complaint, leaving employers free to use their judgment to decide if a child under school leaving age is mature enough to carry out a particular role.
Effect on mandatory retirement ages
Many businesses specify mandatory retirement ages for staff. While the proposals do not impose a blanket prohibition on continuing to do so, it will only be possible for an employer to use mandatory retirement ages to achieve a 'legitimate aim', which cannot be just to save money.
The employer will also have to be able to show that the retirement age is a proportionate means of achieving the employer's aim, ie that the aim cannot be achieved in a less discriminatory way. We expect that mandatory retirement ages would be difficult to justify in most cases.
Implementation timeline
If the proposals are approved in the April meeting of the States of Guernsey then the earliest we might expect to see draft legislation is in the second half of next year with the earliest date on which the legislation will be in force being April 2027. Given age discrimination legislation has been on the horizon for years, the proposals recommend that there is no transition period and instead the provisions would be immediately effective when the law comes into force.
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.
