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Employment Equality (Age) Regulation 2006

publication date: Nov 16, 2006
author/source: Jonathan Exten-Wright and Paul Matthews
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AS an employer, your need to understand the new anti-age discrimination legislation: if you do not or do not comply with it you will risk unlimited compensation awards being made against you and there are only limited defences available.

What are the 2006 Regulations?

The Employment Equality (Age) Regulation 2006 came into force on 1 October 2006 and make discrimination and harassment on grounds of age unlawful.

What can I not do under the Age Regulations?

Under the Age Regulations, five acts are now unlawful - Direct discrimination; Indirect discrimination; Harassment; Instructions to discriminate, and Victimisation.

When might I be directly discriminating?

It would be unlawful for you not to promote an otherwise capable employee solely on the grounds that you think he is “too old” or “past it”. This would be unlawful discrimination even if you were mistaken as to the actual age of the employee, since both actual age and perceived age are covered by the Age Regulations.

When might I be indirectly discriminating?

If you have a policy that requires all employees to have held a clean driving licence for five years, this would be unlawful indirect discrimination. While such a policy would apply to all employees equally, it would follow that younger employees could be indirectly disadvantaged as a result.

Can I ever discriminate on grounds of age?

You can seek to defend a direct or indirect discrimination claim if you can establish that there was “objective justification”. To be objectively justified, the act of discrimination must be a proportionate means of achieving a legitimate aim.

Can I still award benefits based on long term service?

Yes. The Age Regulations provide for an exemption in relation to the practice of requiring a certain length of service before a particular benefit, such as additional holiday days, is awarded. Any benefit you award which is subject to five years’ service or less is lawful. Where length of service of more than 5 years is used, this is lawful if you can show that it is to reflect levels of experience, or to reward loyalty or to motivate employees. Alternatively, you may be able to rely on some other “objective justification”.

What do I need to do in relation to retirement?

The Age Regulations introduce a default retirement age of 65 which allow for the “fair” retirement of employees of 65 or over. To be classed as a “fair” retirement, you must inform your employee in writing of their intended retirement date and of their right to request to continue to work beyond that date, between six and twelve months in advance of the intended retirement date. Where such a request is made, you must meet with your employee to consider the request and inform them of your decision in writing following the meeting. A failure to comply with the procedure means you will be liable for up to eight weeks’ pay, and if you still fail to do this in the last two weeks before retirement, it is an automatically unfair dismissal. If you wish to impose a retirement age which is below 65, you must be able to objectively justify such a policy. This is likely to prove difficult.

Is it only existing employees who are protected under the Age Regulations?

No. In addition to your existing employees, the Age Regulations also apply to job applicants and your ex-employees.

How are existing employees protected?

Existing employees are protected in relation to the terms on which they are employed, the opportunities for promotion, transfer or training, the availability of benefits and grounds for dismissal. In addition, existing employees are protected against agerelated harassment in the work place.

How are job applicants protected?

In relation to job applicants, employers must avoid specifying particular job requirements which may impact upon age. For example, you should avoid wording such as “dynamic professional required - ideal first job”. During any assessment or interview, you should focus on the applicant’s competencies and not what you might expect them to have achieved by reference to their age.

How are ex-employees protected?

In a situation where an ex-employee is subjected to a detriment or harassment for reasons relating to age, this too would be unlawful under the Age Regulations.

What should I consider and watch out for?

You need to keep an eye out for behaviour, comments, actions or omissions which may be in breach of the new Age Regulations. In relation to younger people, things to watch out for might include:

Talking down to younger people in a patronising fashion;
Not promoting a younger person on the basis that they are too young;
Making junior staff do all the menial tasks; In relation to older people, you should avoid:
Advertising for school-leavers or suggesting that a role would be an "ideal first job";
Considering job applicants likely to be too experienced or over-qualified for a role simply because of their age;

What are the consequences of my breaching the Age Regulations?

If an Employment Tribunal upholds a complaint of age discrimination against you it can make a declaration that you have violated the individual’s rights and can make a recommendation that you take steps to prevent or reduce the adverse effects of your discrimination.

Can I be ordered to pay compensation?

Yes. Employees can bring unfair dismissal claims where the duty to consider a request to work past retirement has not been complied with in the last two weeks before retirement. In addition, where there has been discrimination, the tribunal can make an order requiring you to pay (unlimited) compensation to the individual concerned.

Am I liable if one of my employees breaches the Age Regulations?

Yes. Any act of age discrimination carried out by someone while employed by you will be treated as having been done by you as well as by the individual. This will be the case whether or not the discriminatory act was done with your knowledge or approval. In addition, if you knowingly aid another person to do an act made unlawful by the Age Regulations, you shall be treated as having done the unlawful act yourself. If you deliberately make a misleading statement to an employee so as to get them to breach the Age Regulations, that is a criminal offence.

Jonathan Exten-Wright is a Partner and Paul Matthews is a Trainee Solicitor in the employment department of international law firm DLA Piper UK LLP.