Introduction

The new "Age Discrimination" regulations will come into force on 1st October 2006. They will be the most significant upheaval in Employment Law for 30 years. Similar provisions have been in effect in Ireland since 1998 and comprise 25% of all matters before the Irish Equality Tribunal. Discrimination on the grounds of a person’s age will be unlawful unless it constitutes a proportionate means of achieving a legitimate aim.

The anti Age- Discrimination regulations cover:

• Arrangements for recruitment

• Offering/ refusing employment

• The terms of employment including remuneration packages

• Arrangements for promotion, transfer, training, or receiving any other benefit

• Dismissal or applying any other detriment.

Discrimination may be either "Direct" or "Indirect".

Direct discrimination occurs where, on the grounds of B’s age, A treats B less favourably that he treats or would treat other persons.

Indirect discrimination occurs where:

• An employer ("A") applies a "provision criterion or practice" to someone ("B") which A either applies, or would apply, equally to persons not of the same age group as B; and

• That "provision criterion or practice" puts persons of B’s age group at a particular disadvantage when compared with other persons; and

• B suffers that disadvantage.

An indirectly discriminatory practice will not be objectively justified if there is a less discriminatory way of achieving the same aim.

(For example, a requirement that all job applicants be recent graduates would probably have a disparate effect on older candidates, and be discriminatory. The same aim might be achieved by testing each candidate on their individual merits).

Victimisation

The Regulations introduce anti- victimisation provisions designed to protect people against retaliation if they raise issues of Age Discrimination.

Harassment

The Regulations outlaw "Harassment" on the ground of age. Harassment is unwanted conduct which has the purpose or effect of either violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person "on the grounds of age". Be careful not to exclude people from invitations on the grounds of age or make jokes about wrinkles, baldness etc.

The National Minimum Wage regulations are excluded, and discriminatory acts can be lawful in respect of employing people of 65; under statutory authority; for reasons of national security; life assurance or in the event of "genuine occupational requirements".

Recruitment

Discriminatory advertisements will not be unlawful, but they will be used as evidence of an intention to discriminate if an unsuccessful applicant claims that they have been subjected to discrimination.

You should remove questions about age and dates of birth from job application forms.

Do not request information from which a job applicant’s age can be inferred unless the information is necessary (eg dates of education, qualifications etc).

Do not (unless you can justify it) describe a position as an "ideal opportunity for a young candidate"; or require that candidates have a minimum number of years experience at a certain level; or reject a candidate as "over qualified" or describe a position as an "ideal first job"; or require candidates to be recent graduates etc.

Pay/Promotion Issues

Be careful about introducing a new employee on a higher pay scale to reflect experience gained elsewhere.

You may reward length of service within your own organisation, but you may be called upon to prove that it fulfils a "business need" if your policy is challenged by someone who has been with you for five years or more, and feels aggrieved.

Ensure that availability of and eligibility for promotion opportunities do not depend on age related criteria.

Redundancy

The statutory multipliers based on the Employees age will remain, but any enhanced payment calculated with reference to age will be potentially discriminatory. The only changes to the statutory calculation will be the removal of the lower and upper limits on the right to claim redundancy payments

Retirement

The age limits on the right to claim unfair dismissal are removed.

The Regulations introduce a "default" retirement age of 65. If the Employer follows a prescribed procedure, he will be able to lawfully dismiss an employee for retirement at the age of 65 or above. The procedure requires the Employer to notify the Employee (between six and 12 months before the retirement date) of his right to request not to retire. The Employee may exercise his right to request not to retire on the intended date, and the Employer is obliged to consider this request with the Employee at a properly constituted meeting. The Employer has to issue his decision in writing, and the Employee has a right of appeal.

For further information please click one of the following links. They will open in a new window ACAS or DTI . Alternatively you can click the following link to return to the TS&P Employment Section.