Is Your Business Age-Aware
Anti-age Discrimination Regulations come into force on 1 October 2006. The government hopes that the new laws will go some way towards dealing with the increasingly inadequate pension provisions. The Regulations aim to prohibit both direct and indirect discrimination on the grounds of age. For example, the setting of a maximum age limit for a job role will constitute direct discrimination and a requirement that applicants have a certain number of years’ experience will constitute indirect discrimination. Harassment and victimisation will also be prohibited.
Unlike other forms of discrimination though, it will be possible to defend what appears on the face of it to be discrimination, if it can be “objectively justified”. For discrimination to be lawful under the objective justification test, it must pursue a legitimate aim and be a proportionate means of achieving that aim. Examples of this are the protection of employees’ health and safety, the encouragement and reward of loyalty or the need for a reasonable period of employment prior to retirement.
The Regulations will have an impact on many aspects of the workplace and it is essential that all employers review their recruitment, pay, benefits, dismissal and redundancy policies and procedures to ensure they are compliant with the new Regulations. In particular, you should ensure that your Terms and Conditions of Employment reflect the fact that the new default retirement age for all employees is now 65. Any lower retirement age would have to be objectively justified which is likely to be very difficult to prove. The DTI has said that it cannot envisage a circumstance where a lower retirement age would be justified.
Although retirement is not a fair reason for dismissal, employees will have the right to request working beyond retirement age. Employers are under an obligation to inform employees of their right to request continued working at least six months (but less than one year) in advance of their retirement age and to consider any request. Failure to do so will automatically render that retirement dismissal unfair and therefore expose the employer to an unfair dismissal claim possible resulting in a basic and compensatory award (of up to £58,400!) or an order for reinstatement or re-engagement. In addition, an unlimited amount of compensation could be awarded for age discrimination.
The Regulations go live on 1 October 2006 and all employers will have to ensure compliance from that date. However, employers who have employees due to retire shortly after 1 October 2006 will have to take steps prior to that date to comply with the new laws. We strongly recommend that employers start implementing policies to comply with the Regulations now, so as not to be caught out on 1 October and to make their staff aware. As employers, you can be liable for the actions of your employees so make sure they are Age Aware too!
To contact Raworths, telephone 01423 566666 or visit our offices at Eton House, 89 Station Parade, Harrogate HG1 1HF. Or visit our website on www.raworths.co.uk or email sally.togher@raworths.co.uk
