Age Discrimination: One Year On - Employment Law News Autumn 2007

01 October 2007

On 1 October 2006, legislation outlawing age-based discrimination was implemented for the first time in the UK. The Employment Equality (Age) Regulations 2006, which implemented a European Directive, were hailed by many as the most significant upheaval in employment law for 30 years.

The new laws prohibit discrimination on the grounds of age in employment and vocational training, unless the discriminatory aspect can be shown to be objectively justified.

But, what is the position one year on?

The recently published Tribunal Service annual report shows that, in the six month period to 31 March 2007, just 972 claims at employment tribunals involved age discrimination, either as a primary or secondary jurisdiction. This would suggest that the predicted surge of age discrimination claims has not yet emerged.

Evidence from the charity, Age Concern, suggests that many employers have gone against the spirit of the legislation by implementing a mandatory retirement age that forces people over the age of 65 to retire. Provided that this is the worker’s planned retirement age and the employer has followed a compliant duty to inform and consider procedure, this is legally acceptable.

Perhaps as a consequence, Age Concern, with its membership organisation, Heyday, has launched a legal challenge to the UK age discrimination regulations. The case has been referred to the European Court of Justice (ECJ) by the High Court for a decision on whether the UK legislation is a fair implementation of the European Directive.

However, the current indications for Heyday are not positive. The Advocate General’s Opinion was handed down earlier this year to the ECJ in a Spanish case, which concerns similar issues relating to the lawfulness of provisions of Spanish law permitting compulsory retirement. The Advocate General has recommended that the ECJ find that the Spanish age discrimination regulations do not breach the European Directive. Therefore, it is likely that similar findings will be made in the Heyday case. In any event, it is not expected that the Heyday case will be heard until 2008; it is probable that the ECJ will not issue a judgment before 2009.

Does all this mean that the significance of age discrimination laws has been over hyped?

It is still very early days and experience suggests that it can take many years before a new piece of employment legislation leads to a surge of legal claims.

In our view it would be highly dangerous for employers to be complacent. Our experience suggests that, whilst employers are generally aware of the age discrimination laws, unlawful practices in the workplace remain rife. Recruitment, application and retirement procedures are often non compliant and internal pay structures and the practice of granting service-related benefits are frequently tainted by in-built discriminatory factors and assumptions. Employers should, therefore, continue to monitor their employment rules and procedures to eradicate potential discrimination and discriminatory practices. Failure to do so is likely to lead to the surge of age discrimination claims that were predicted.

For more information please contact Andrew Masters, Partner & Head of Employment.
 

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