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Age regulations
The Employment Equality (Age) Regulations 2006 come into effect on 1
October 2006, making discrimination on grounds of age unlawful in
the UK for the first time. The following is a brief overview of the
main provisions.
Who and what do the regulations cover?
The regulations make it unlawful for employers to discriminate
against workers, employees, job seekers and trainees because of
their age.
They apply to all employers, private and public sector vocational
training providers, trade unions, professional
organisations,
employer
organisations
and trustees and managers of occupational pension schemes.
The age regulations cover recruitment, terms and conditions,
promotions, transfers, dismissals and training. They do not,
however, cover the provision of goods and services, nor unpaid
voluntary work.
What is direct discrimination?
The regulations outlaw direct age discrimination, which is less
favourable treatment on grounds of age in employment and vocational
training, including education courses provided by further and higher
education institutions.
Unlike other equality legislation, direct discrimination on grounds
of age can be justified. To succeed, employers will have to show
that the less favourable treatment was necessary to achieve a
"legitimate aim" and was "proportionate".
Financial cost alone will not amount to a "legitimate aim", but it
is likely that cost can be put into the balance alongside other
factors.
What is indirect discrimination?
It is indirect age discrimination for employers to operate a
provision, criterion or practice which, although applied to
everyone, disadvantages people of a particular age. It is unlawful
whether intentional or not.
As with direct discrimination, indirect discrimination can be
justified by employers where the less favourable treatment is a
necessary means of achieving a legitimate objective and is
proportionate.
What is harassment?
Harassment on the ground of age is defined as unwanted conduct that
violates a person's dignity or creates an intimidating, hostile,
degrading, humiliating or offensive environment for a complainant.
Employers cannot objectively justify harassment on grounds of age.
What is
victimisation?
Employers should not
victimise
staff by treating them less favourably because they made or intend
to make a complaint about discrimination or harassment on the
grounds of age, or because they have given or intend to give
evidence under the regulations. This also includes issues that may
arise at the end of a working relationship, such as a request for a
reference.
What are the exceptions?
There are extensive exceptions to the regulations, which will
significantly limit their application, as follows:
-
Retirement:
employers are allowed to retire their employees at age 65 or above
-
Genuine
Occupational Requirement: this only applies to recruitment,
promotion, training and dismissal and not to contractual terms
-
Pensions:
trustees and pension scheme managers can discriminate on the basis
of age in relation to minimum and maximum ages for joining;
setting ages for entitlements to benefits; fixing early and late
retirement ages; using age in actuarial calculations; varying
contribution rates according to age; and linking pension levels to
pensionable service.
-
Redundancy:
statutory redundancy payments using age-related criteria are still
lawful
-
Differential
wage rates are allowed if they mirror the National Minimum Wage
-
Actions
required by statute or regulation are exempted
-
Service
related benefits that require less than five years' service are
exempted, but. any above that have to be justified by the employer
showing that it "reasonably appeared to him" that the benefit
"fulfilled a business need, for example by encouraging loyalty,
motivation or rewarding experience".
The
"duty to consider" procedure?
The employee has
the right to ask to stay on. A request to stay on must be made at
least three months before the due retirement date, and if the
employer does not agree to the request they must invite them to a
meeting to discuss it. Employees are not entitled to a reason if
their employer refuses their request to continue working, but have
the right to appeal the decision. This is know as the ‘duty to
consider’ procedure.
What is the transitional period?
The regulations contain transitional arrangements that set out what
should happen to retirements between 1 October 2006 and 31 March
2007.
What happens to retirements before 1 October?
If an employee is given notice before 1 October that they are to be
retired during the transitional period, they are either entitled to
their contractual notice period, or at least four weeks' notice if
their notice is longer than that.
Employers have to write to their employees on 1 October (or as soon
as possible after that), telling them that they have the right to
request to work longer. Employees can make the request for up to
four weeks after their contract has been terminated.
What are the transitional arrangements after 1 October?
If the employee is given notice after 1 October, the employer must
write to the employee notifying them of the intended retirement
date, offering them either their contractual or statutory notice
period (whichever is longer).
Employers have to write to their employees on 1 October (or as soon
as possible after that), telling them that they have the right to
request to work longer. Employees can either make their request four
weeks before the intended retirement date or, if that is not
practical, as soon as possible after receiving their notification.
The request can be made up to four weeks after the termination of
their contract.
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