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Age Discrimination

01 December 2003

Businesses need to be aware that new age discrimination laws to be introduced from next year will give young workers as well as older staff new rights of employment, says employment law specialist Andrew Masters. “Most people think in terms of the older generation when it comes to age discrimination, but the Employment Equality (Age) Regulations 2006 will apply to younger workers too as employers must be careful when making decisions based on age,” said Andrew Masters, a partner at Furley Page Solicitors. Employers will need to review their application forms and remove references to date of birth. They will also need to ensure adverts are age neutral and consider whether they can justify a minimum number of years experience for a job, as this is likely to disadvantage younger applicants. In addition to recruitment, other areas due to change from October 2006 are: Service-related pay and benefits Many employers require their employees to have completed a certain length of service before pay is increased or benefits given. These can be discriminatory against younger workers, who have not completed the required length of service. This will be unlawful unless the employer can establish one or more of the following exemptions. Firstly, any length of service requirement of five years or less is not deemed unlawful discrimination and, secondly, any length of service requirements directly based on those in statutory schemes, for example, contractual redundancy schemes providing enhanced benefits. There is also a general exemption covering workers with more than five years service, when the employer can establish that there are business benefits for the practice on the grounds that it rewards loyalty, encourages motivation or recognises the experience of a worker. Retirement age There will be a set ‘default’ retirement age of 65. Employers will not be prevented from having a retirement age lower than 65, but will only be able to do so where it can be objectively justified and is judged appropriate and necessary. A new ‘duty to consider’ procedure will be introduced for compulsory retirement of employees at any age. Employees will have a formal right to request to work beyond the default retirement age, or the employer’s justifiable retirement age (if lower). There is no right for the employee to be given reasons for an employer’s refusal of a request, nor to test the business or other grounds for any refusal in a tribunal. However, if the procedure is not followed correctly, an employee may be able to claim unfair dismissal.
Unfair dismissal Currently, employees are unable to claim unfair dismissal if they have reached the retirement age for the position or, if none exists, the age of 65. From October 2006 this statutory limit will no longer apply. However, compulsory retirement at, or over the default retirement age of 65, will still be a fair dismissal, provided that the retirement is a genuine retirement and the employer has followed the duty to consider procedures. Importantly, the one-year qualifying length of service for unfair dismissal will be maintained. Redundancy Currently, employees are unable to claim a redundancy award if they have reached retirement age for the position or, if none exists, the age of 65. From October 2006 this statutory limit will no longer apply. Importantly, the two year qualifying length of service for redundancy will be maintained. Length of service and the 20-year cap will also remain for the calculation of redundancy payments. However, the multiplier based on age bands will no longer be a factor when calculating a statutory redundancy or basic award payment for unfair dismissal. The new level of multiplier has yet to be determined.
Andrew Masters concluded: “Employers should now be planning for the changes to eradicate potential discrimination and discriminatory practices.”

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