Age Discrimination – What Will It Mean?
In November 2005 we wrote a piece about the proposed draft Age Discrimination Regulations. The Regulations in their final form have now been published and the Regulations themselves come into force on 1st October 2006.
As this legislation is a current topic you will hear more and more about it in the news. Age Discrimination will affect both employers and employees and at all stages of the employment relationship, in recruitment, in connection with employment contracts, and on retirement from employment. In turn we will take a look at these three areas: the recruitment of an employee, the Contract of Employment, and then termination for retirement.
Recruitment
From 1st October 2006 it will be unlawful to discriminate against an applicant for a job on the basis of that applicant’s age. There is a very important exception to this, and that will be that it will not be unlawful to discriminate if the applicant is over the age of 65 or within 6 months of reaching the age 65 at the time of the application.
Apart from this blanket exemption, employers may be able to justify discrimination based on age if they are able to objectively justify their decision. The ASDA supermarket has publicised the fact that they are removing requests for dates of birth from their employment application forms. It is not necessarily unlawful age discrimination to ask for this information, but only to discriminate on the basis of it. Whilst removing references to age in the application process is a good indication that age is not the basis upon which decisions are made, this does not mean that asking for this information is the basis for a decision.
We can perhaps expect to see more unsuccessful applicants for positions asking for feedback on why they were not selected for interview or for position, and if this information is not volunteered, disappointed applicants will be able to send a prospective employer a questionnaire. If the employer fails to respond to this then adverse inferences can be drawn at a later stage by an Employment Tribunal.
The Contract of Employment
It will be unlawful to discriminate against existing employees based on age, again unless that treatment can be objectively justified. This will apply to opportunities for promotion and training as well as benefits. The legislation covers both direct and indirect discrimination. Indirect discrimination happens where employers apply a provision criterion practice which favours one group above another. This means that benefits that depend on a number of years’ service could indirectly discriminate against a younger age group. There is a blanket exemption for all service-related benefits, provided the amount of service is five years or less. Additional benefits for five years’ plus service are exempt provided that they are intended to reflect experience, or encourage or reward loyalty or maintain motivation.
Retirement
The age limit for claiming unfair dismissal is removed and there have already been reports in the press that employers are concerned about the impact of this on their businesses and may be seeking to terminate the contracts of older workers before the regulations come into force on 1st October. In fact, the regulations provide that an employer can fairly dismiss an employee provided they comply with a procedure and give due notification (between 6-12 months), and also that they consider a request to work beyond retirement age. There is no duty to grant that request and provided an employer has given due notice, the decision to dismiss for retirement will effectively be unchallengeable, unless the aggrieved employee is under 65 or alleges that the decision is unlawful on another ground, such as discrimination of the basis of race, sex or disability.
In summary, this legislation will lead to a change in social attitudes in the same way as sex discrimination legislation has led to a change in attitudes to women at work. In 1982 a female job applicant successfully complained when her application was declined because her rejection letter stated the following: “regrettably I must decline your application since a young mum with three kiddies will be failing in her domestic duty to take up the opportunity that I offer.” Ireland has introduced age discrimination legislation ahead of us and their Tribunals have thrown out employers’ claims that they are entitled to reject an applicant who had many years experience for a junior on the basis that the applicant may lack motivation and have difficulties accepting a less qualified manager. These objections were found in that case to be groundless, outdated generalisations and the rejected applicant was successful in his claim.
As complaints about age discrimination are decided and reported in the press we can expect to see a change in attitude towards age in the workplace.
