Age Legislation

It won’t affect me, will it?

Yes, it will affect you.

On 1^st October 2006, legislation outlawing age discrimination will come into force. It will cover both employment and vocational training. It will cover both the private and public sectors and every organisation. It will include every member of your workforce, young and old. It will apply to everyone you employ, whether that’s one, 100 or 1,000.
Employers will have to adopt age positive practices. This means you will no longer be able to recruit, train, promote or retire people on the basis of age.
In March 2006, the Employment Equality (Age) Regulations 2006 were published. These can be viewed by visiting the Department for Trade and Industry website at http://www.dti.gov.uk/employment/discrimination/age-discrimination/index.html

The new legislation doesn’t just concern older people; it covers young and old alike throughout their working lives. Skills, experience and the ability to do the job are what’s important, not someone’s age. This will require a major cultural change in businesses throughout the UK. That’s why it’s important to start planning now.

Others’ experiences

It doesn’t take long for the consequences of not complying to bite. Take the example of the Republic of Ireland where allegations of ageism now make up 19% of Ireland’s formal discrimination claims. Defending their case is proving highly costly for employers. However, it doesn’t have to be this way – just be prepared.

What the new regulations mean in practice!

Pay and benefits

A “five-year exemption” clause means that benefits based on a length of service requirement of five years or less can continue.

Beyond that, length of service can be rewarded provided the employer can show an objective justification, for example, that there is an advantage from rewarding loyalty, encouraging motivation or recognising experience.

All employees whatever their age, will be entitled to the same level of benefits, even if providing that benefit to one age group incurs a greater cost for the employer.

So if an employer chooses to allow employees to work beyond the retirement age of 65, the fact that a benefit such as permanent health cover becomes more expensive will not justify the employer in not providing that cover if they still provide it to younger employees.

Retirement

Under the new regulations the national default retirement age is 65.

Compulsory retirement before 65 is unlawful, unless the employer can show that there is a legitimate business reason for it.

In addition, the employee has the right to request to work beyond 65, and the employer must inform the employee of this right.

If a request is made, the employer must consider it.

Having considered it, the employer is free to decide whether to grant it or not.

Criteria for extending the retirement age beyond 65 will need to be consistent to avoid accusations that retirement is used selectively as a tool for dismissal.

Harassment

As with other areas of discrimination, it is not only individuals who carry out harassment who are at risk – there is also a vicarious liability upon the business that employs them.

It is not enough for businesses to claim that comments or actions were unauthorised.

To avoid liability businesses must show that they have taken all reasonable steps to prevent harassment, that staff are aware that harassment will not be tolerated and that a complaints process is in place for staff who feel they have been harassed.

If you need further guidance please contact Andrew Bryan on 02392210170 or abryan@churchers.co.uk.

Protection for Whistleblowers

Never sack an employee because they blow the whistle. The law protects employees in this position. Always take legal advice first.

In a recent case against Abbey National, the court looked at the law in this field – the Public Interest Disclosure Act. The Court of Appeal said that the Act protected ex-employees as well as current employees and the ex-employee concerned could bring a claim under the Act. Employers should consider setting up a system whereby an employee with a concern over another employee such as engaging in bribery, price fixing or breach of health and safety law, for example, has some means of raising the matter internally. This could be with the company secretary or a senior director direct, rather than with their boss who may be implicated in the problem. This can help the company concerned manage the issue appropriately but if the employee chooses to notify the authorities then their legal position is protected by the 1998 Act.

If you have any disputes with employees or may be proposing to sack a member of staff it is wise to seek legal advice first. Call Andrew Bryan on 02392 210 170 for further information.

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Notes

1. The case is Woodward v Abbey National plc (No 1) [2006] EWCA Civ 822
The case held that thePublic Interest Disclosure Act 1998 extended to a claim against a former employer alleging detriment suffered after termination of a claimant’s employment.

2. The claimant made a complaint under s 48 (1A) of the Employment Rights Act 1996 that, after her employment had ended, she had suffered a detriment contrary to s 47B(1) on the ground that she had made a protected disclosure during her employment with the respondent employer. At a preliminary hearing an employment tribunal held that it had no jurisdiction to hear the claim as the alleged detriment had occurred after the termination of her employment. The Employment Appeal Tribunal upheld the decision but the Court of Appeal overturned it.