Discrimination (Age)

The Employment Equality (Age) Regulations 2006 that came into force on 1 October 2006 gave individuals new rights not to be discriminated against because of their age and placed new responsibilities on all employers and providers of vocational training. The provisions of these regulations were brought into the remit of The Equality Act 2010 together with other anti-discriminatory legislation.  The provisions apply to all workers and to people who apply for work. They also cover access to vocational training. They prohibit direct and indirect age discrimination, harassment and victimisation.

Job applicants
The right not be discriminated against applies to job applicants and where people make other applications in the areas covered by the regulations: for example, people applying for a place on a vocational training course or people applying to become members of trade organisations. The rights also apply after the relevant relationship (e.g. employment) has ended.

Exceptions
Objective justification
In most situations, it is unlawful to treat people differently on the grounds of age. However, employers and others with obligations under the Act will be able to justify different treatment on the grounds of age, but only if they can show that:

• it fulfils a legitimate aim; and
• the particular circumstances make it appropriate and necessary.

A wide variety of aims may be considered as legitimate, but must reflect a real need on the part of the employer or other person with obligations under the legislation. An example given in the legislation, is the fixing of a maximum age for recruitment or promotion which is based on the training requirements of the post in question, another is the need for a reasonable period of employment before retirement.

Legislative justifications
Employers do not have to objectively justify age-based decisions they have to make in order to comply with other legislation - for example, legislation prohibiting the employment of people under 18 in a bar open for the sale or consumption of alcohol.

Genuine occupational requirements
The provisions say that an employer is entitled to use an age requirement where (having regard to the nature of the employment or the context in which it is carried out):

• this is a genuine and determining occupational requirement; and
• it is proportionate (that is, appropriate and necessary) for the employer to apply the requirement.

Positive action
Anything done in connection with the following is lawful if this is reasonably expected to prevent or compensate for disadvantages suffered by such persons:

• giving people of a particular age access to vocational training; or
• encouraging people of a particular age to use employment opportunities.

Recruitment, selection and promotion
Decisions about recruitment, selection and promotion should not normally be based on age, but should be based on the skills and competences required for the job. Different treatment on grounds of age in these areas are only lawful if the employer can satisfy the strict test of objective justification.

Service-related pay and benefits
Length of service is often used as a criterion for pay, and for non-pay benefits such as staff discounts or extra holiday entitlement. This can amount to indirect discrimination because some age groups are more likely to have the necessary length of service than others. Such benefits are used widely to motivate staff, reward loyalty, and recognise experience. There are two exemptions and a general provision covering the use of length of service.

Specific exemptions
These include:

• any length-of-service requirement of five years or less (counting both continuous and non-continuous service);
• length-of-service requirements that mirror a similar requirement in a statutory benefit: for example, contractual redundancy schemes where service related provision is more generous than under the statutory scheme.

General provision
There is also a provision covering length of service longer than five years. To rely on this exemption the employer must:

• award the benefit to reward loyalty, or to encourage motivation, or to recognise the experience of the employee; and
• conclude that there will be a business benefit resulting from the higher level of experience of staff or from rewarding staff loyalty or increasing or maintaining staff motivation; and
• apply the length-of-service criterion similarly to staff in similar situations.

Retirement
The Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 meant that there would no longer be a 'default' retirement age. Older workers can voluntarily retire at a time they choose and draw any occupational pension they are entitled to. However, employers cannot force employees to retire or set a retirement age unless it can be objectively justified as what the law terms 'a proportionate means of achieving a legitimate aim'.

Whatever the age of an employee, discussing in a general way their future aims and aspirations can help an employer identify training or development needs and provide an opportunity to discuss future work requirements. For all employees, these discussions may involve the question of where they see themselves in the next few years and how they view their contribution to the organisation. A useful exercise is to ask open questions regarding an employee's aims and plans for the short, medium and long term. Some employers may find it useful to hold these discussions as part of their formal appraisal process.

Any direct question such as "are you planning to retire in the near future" should be avoided. However, if the employee indicates they wish to retire there is no problem in the employer talking to them about the date of their retirement and any working arrangements leading up to it.

The outcome of any workplace discussions should be recorded by the employer and held for as long as there is a business need for doing so. It would be good practice to confirm what was discussed, in writing, to the employee.

If an employee has given their employer formal notice of their intention to retire on a certain date, it is under no obligation to let them withdraw their notice. However, if an employee tells their employer during a discussion that they are planning to retire, they may change their minds before formal notice is given.

Where an employee changes their mind and decides not to retire, but where no notice has been given, the first thing an employer should then do is to discuss with the employee their reason for not retiring. This can help establish whether there is any issue the employer might be able to help the employee overcome  so they can retire on the due date or shortly after. Ultimately, however, if the employee decides they do not wish to retire, for whatever reason, then the employer cannot compulsorily retire them, as this would leave the employer open to a complaint of unfair dismissal.

Exceptions, where compulsory retirement may be imposed by the employer may include:

• where the job requires certain physical abilities (e.g. in the construction industry)
• where the job has an age limit set by law (e.g. the Fire Service)

Redundancy 

Employees who are made redundant at any age have the same entitlement to a redundancy payment: the upper age limit has been abolished.

Claims
Age discrimination claims relating to employment and vocational training will be dealt with through the employment tribunals. The main exception to this rule is that claims against providers of further or higher education (as opposed to other vocational training) must be brought in the County Courts (England and Wales) or the Sheriff Courts (Scotland).