Outlawing Ageism
Legislation to outlaw age discrimination is due to come into force on 1 October 2006. Employers will no longer be able to recruit, train, promote or retire people on the basis of age, unless it can be objectively justified. Compensation recoverable if discrimination is found to have occurred will be potentially unlimited.
The Draft Regulations
Consultation on the draft Age Regulations is on-going. The draft Regulations:-
- Prohibit unjustified age discrimination in employment and vocational training;
- Require employers who set their retirement age below the default age of 65 to justify or change it;
- Introduce a new duty on employers to consider an employee’s request to continue working beyond retirement;
- Require employers to inform employees in writing, and at least six months in advance, of their intended retirement date, which is intended to allow people to plan for their retirement;
- Remove the upper age limit for unfair dismissal and redundancy rights, giving workers aged 64 and over the same rights to claim unfair dismissal or receive a redundancy payment as younger workers, unless there is a genuine retirement;
- Include provisions relating to service-related benefits and occupational pensions.
The Regulations also remove the age limits for Statutory Sick Pay, Statutory Maternity Pay, Statutory Adoption Pay and Statutory Paternity Pay.
These are examples of age discrimination cases brought in countries which already have age discrimination legislation:
- Qantas dismissed an airline captain because at the age of 60 he was not allowed to fly over those countries with age restrictions on pilots in command of an aircraft. An Australian court decided that this was age discrimination.
- Ryanair, when advertising for the post of Director of Regulatory Affairs, stated in the advertisement that they wanted “a young and dynamic professional” and that “the ideal candidate will be young, dynamic ….” The Republic of Ireland Equality Authority referred this to the Director of Equality Investigations, claiming that this contravened the Employment Equality Act of 1998. Ryanair claimed that although the word “young” had been used twice, what they were indicating was “a state of mind”, and that no age limits were mentioned. The Equality Officer decided that the use of the word “young” constituted age discrimination and the company was fined 8,000 Irish pounds.
- An accountancy company advertised for staff with “2-3 years’ post qualification experience”. An applicant with 20 years’ experience applied on two occasions for posts in the company and was rejected – the reason given both times was being “too senior”. He claimed it was age discrimination as the requirement for only 2-3 years experience ruled out older people. The Republic of Ireland Equality Officer decided that the company, whilst not directly discriminating against him, had indirectly discriminated on the grounds of age and were ordered to pay 10,000 Euros compensation.
Practical tips to avoid age discrimination
- Recruitment: Remove age limits from your job advertisements.
- Training: Ensure training and development opportunities are open to all employees.
- Promotion: Have a policy on promotion and career development that emphasises age is not a barrier.
- Flexible Working: Adopt flexible working practices such as part-time working, job share, career break opportunities, phased retirement and flexitime. Make sure flexible working options are open to all age groups and not seen as just for people with young children.
- Pay and benefits: Scrutinise your policies on pay and benefits and ask yourself whether they are based on age in some way.
- Redundancy: Always base your decisions for making employees redundant on the needs of your business – not age.
- Retirement: Consider removing compulsory retirement ages and introduce a flexible retirement policy.
The consequences of age discrimination will be far-reaching and the risks of claims are considerable. In order to minimise that risk, it is essential that businesses plan to change their working practices and take advice on the potential pitfalls they may face at an early stage. Preparation in this respect is an investment.
September 2005
Sally Archibald is an associate solicitor who specialises in employment law - email sally.togher@raworths.co.uk
This and additional topics will be covered at our bi-annual employment seminar in October 2005. For further information, please contact deborah.boylan@raworths.co.uk.
