Can you Find it – Business © 2017 THE FULL STORY…AGE DISCRIMINATION LAWS WILL APPLY TO EVERY ORGANISATIONPublished in Can you find it Business Edition on Thursday, December 1st 2015
AGE discrimination – it won’t affect my business will it? Yes it will affect your business. On Oc
tober 1, 2016, legislation outlawing age discrimination will come into force. It will cover both employment and vocational training. It will cover the private and public sectors and every other organisation. It will include every member of your workforce, young and old and it will apply to everyone you employ, whether that is one person, 100 or 1000 people.
Burnetts’ employment team were pleased to see so many forward-thinking employers at the seminar they held on November 23 at Tullie House on this very topic. The afternoon was a great success. Joanne Stronach, associate in the Employment Team said: “It was great to see so many employers taking an interest in what is going to be a big change to employee’s rights. It will affect every area of employment from recruitment to retirement. It is essential that employers are prepared.”
So what might be seen as age discrimination?
Offering medicals to the over 50s;
Advertising for someone to join a “young, dynamic team”;
Advertising for someone with more than five years experience or a specific qualification, unless it is a requirement of the job;
Requesting an individual’s age during an interview rather than as part of your equal opportunity monitoring or after they start work;
Moving those over 60 years of age off heavy manual duties or shifts;
Offering training to just younger members of staff or refusing training to older employees;
Believing that younger people do not have the competence for management and overlooking them for promotion.
Believe it or not, from October 1, 2016, all of these practices could be questioned as being age discriminatory.
The new rules will impact on almost all aspects of an organisation’s employment policies – from recruitment to dismissal, pay and benefits, training and redundancy to retirement and pensions.
Where a person’s actual or perceived age is used as a reason for different treatment in a comparable situation and there is no objective justification for doing so, this will amount to direct discrimination.
Indirect age discrimination will occur where a blanket policy or practice disadvantages a certain category of person because of his or her age, even if this effect is inadvertent.
The key changes are as follows:
New default retirement age of 65 years;
Employers will have a duty to consider requests to work beyond retirement age;
Direct and indirect age discrimination will be unlawful unless objectively justified;
No upper age limit for unfair dismissal claims;
Ageist harassment will be unlawful;
Changes to statutory redundancy pay to eliminate ageist elements;
Service-related benefits to be retained provided certain conditions are satisfied;
Insurance benefits must not be denied on grounds of age unless objectively justified;
Occupational pensions largely but not entirely excluded from the impact of the Regulations.
Requiring applicants to pass a health or fitness test for recruitment or promotion would not constitute direct age discrimination. But it might be indirect age discrimination if people of certain ages were less likely to pass this test than other age groups (in which case the employer would have to objectively justify it). Using a health test will be justifiable if the test is set at a level necessary to indicate whether someone was capable of doing the actual job. Age discrimination can also take place after employment in the same way as sex or race discrimination. This will impact directly on the practice of providing references.
Direct and indirect age discrimination will be justified and lawful if it is a proportionate means of achieving a legitimate aim.
Direct age discrimination may, depending on the circumstances, pursue a legitimate aim if:
The setting of requirements as to age is in order to ensure the protection or promote the vocational integration of people in a particular age group;
The fixing of a minimum age to qualify for certain advantages linked to employment or occupation is in order to recruit or retain older people;
The fixing of a maximum age for recruitment or promotion is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.
These are examples only not exemptions. It will be necessary to provide evidence when challenged. Assertions by the employer will not be enough. The Government stresses that the test will not be an easy one to satisfy. The principle remains that different treatment on the ground of age will be unlawful: treating people differently on the ground of age will be possible but only exceptionally and only for very good reasons. Other examples of legitimate aims could be:
Health, welfare and safety;
Facilitation of employment planning;
Particular training requirements;
Encouraging and rewarding loyalty regardless of age;
Recruiting or retaining older people.
The draft age Regulations also include two specific exemptions:
Any length of service requirement of five years or less will be exempted and will be able to continue;
Any length of service requirement that mirrors a similar requirement in a statutory benefit will be exempt and will be able to continue.
The national minimum wage age bands will also continue to be lawful. In relation to retirement, under the new draft procedure an employer must notify the employee in writing of his or her impending retirement no more than 12 months and no less than six months before retirement is due and tell the employee of their right to make a request to continue working longer.
If the employer fails to notify the employee of these two matters, a Tribunal may award compensation of up to eight weeks pay.
Where the employer has not informed the employee of his or her right to request working longer and of the intended retirement date in accordance with the procedure, he has an ongoing duty to do so until two weeks before dismissal. If the employer fails to do this, the dismissal will be automatically unfair.
An employee’s request to stay on beyond retirement must be made no more than 12 months and no less than six weeks before retirement is due. Where a request is made and the employer fails to consider it properly, which includes the holding of a meeting with the employee, the dismissal will be automatically unfair.
Now is the time to check your recruitment practice, benefit terms, training policy and retirement practice to make sure yours are complaint.
For more information on this topic, please contact Joanne Stronach at Burnetts Solicitors on 01228 552222.