Age Discrimination

Further to our articles in previous newsletters we are now reminding you that the new age discrimination regulations become law on 1st October 2006.

To briefly recap they will apply to employees of all ages and they will cover both employment and vocational training. Compulsory retirement under the age of 65 becomes unlawful unless objectively justified. Employees will have the right to request to work beyond 65 and employers will have a duty to consider this request. Occupational pension schemes are covered by the regulations but state pensions are unaffected. We recommend that employers carry out an age audit of their existing employees to identify any potential retirements and to ascertain an accurate snapshot of the current workforce. In our last newsletter we gave details on how to deal with retirements up to 31st March 2007 and now we look at how the full regulations will apply to those employees due to retire on or after 1st April 2007. For the retirement to be classed as fair the employee must be informed of their intended retirement date and their right to request to continue working beyond this date at least 6 months before but no more than 12 months in advance of this date.

There is an obligation on employers to give due consideration to any such request but they are entitled to refuse the request without giving a reason for the decision. It is important to take advice on any refusals in order that any potential discrimination issues can be identified. Requests by employees to continue working must be made in writing no less than 3 months before the intended date.

The employer must meet with the employee to discuss this request within a reasonable period of time. The employee has a right to be accompanied by a colleague or trade union representative and this right also applies to any subsequent appeal. It is important that the employer avoids making stereotypical assumptions about the capabilities of the employee. Failure by an employer to follow the correct procedures will make the dismissal automatically unfair.

Employers need to be aware that any recruitment should also be free of age discrimination. Recruitment decisions should be based on the skills required to do the job. Producing a job description that outlines the duties required in a particular job and a person specification that outlines the skills, knowledge and experience required to carry out that job is invaluable. All references to age or length of experience should be avoided. Age or date of birth should be removed from the application form and employers should ensure that if they ask for specific qualifications they are not disadvantaging applicants of different ages. It is still acceptable for employers to include date of birth on their new starter forms. Revised application forms compliant with age discrimination legislation can be downloaded from mhl’s website.

Advertisements should reach a wide audience and not be focused on publications read by a certain age group. Language that implies a person of a certain age group would be preferred must also be avoided. Shortlisting should be based on skills and ability and it will be good practice to check the process at this point to ensure no discrimination has taken place. Interviews should preferably be carried out by more than one person and any questions or comments relating to age should be avoided. All decisions should be documented and monitored.