Following an EU Directive, age discrimination at work will be illegal come October 2006. Her Majesty’s Government recently published draft regulations to implement the Directive.
Author: Victoria Parry, Partner, Osborne Clarke
It has finally arrived: protection against age discrimination. Last week the Government published draft regulations on age discrimination. The new laws will come into play in October 2006 but there are some interesting key points: all people (not just people over the age of 41) will have protection against age discrimination. As expected, the prohibited act follows the same pattern as other forms of discrimination. So direct and indirect discrimination will be prohibited as well as harassment and victimisation. It will also cover recruitment, employment, promotion, dismissal and provision of references.
Interestingly there are some fundamental differences in age discrimination. Both direct and indirect discrimination can be justified if the discrimination is proportionate and achieves a legitimate aim. Key legitimate aims for the marketing industry are likely to include:
- encouraging and rewarding loyalty; and
- the need for a reasonable period of employment before retirement.
But let's not forget that the discrimination also has to be proportionate. So for example, it may be possible to justify a length of service in setting benefits but if you start having service requirements of above 5 years then you really need to be careful about justification on this point. Any service requirement of 5 years or less will be lawful if it applies to all people doing similar work. For example, it is very common to have an increase in holiday entitlement according to an individual's service with the company. The argument put forward is that this encourages and rewards loyalty. Does it really? It may be worth having a quick recky of the history within your organisation to see whether holiday entitlement really is an issue that will prevent people from moving employment.
Particular care needs to be taken when dealing with issues such as sabbaticals where it is common to have a sabbatical "upon reaching your 40th birthday" or after 10 years service. Can you really still justify this?
Retirement ages of over 65 will be lawful. Retirement ages below 65 will be unlawful unless objectively justified. The issue of default retirement ages will be revisited in 2011 to consider whether all retirement ages should be outlawed. It anticipated that employers will have to write to employees within 12 months (and not less than 6 months) of their retirement date. The notification must inform employees of the right to request a continue working. If the employee wants to continue working then the employer must consider this in good faith. You would be required to hold a meeting with the employee and the employee would have a right of appeal against refusal. Also bear in mind the upper age limits for unfair dismissal and redundancy rights will be removed. Further details will follow.